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Court Orders Dismissal of US Wiretapping Lawsuit 362

Posted by Zonk
from the we-heard-your-plan-you-have-no-case dept.
jcatcw writes with a link to a ComputerWorld article about the dismissal of a case against the NSA over the wiretapping program revealed last year. The case was brought by the ACLU. A three-judge panel in the Sixth Circuit has sent the case back down to District court for ultimate dismissal. "The appeals court decision leaves opponents of the NSA program in a difficult position, said Jim Dempsey, policy director of the Center for Democracy and Technology, a civil liberties group that has opposed the program. The appeals court ruled that the plaintiffs could not sue because they can't prove they were affected by the program, and at the same time, ruled that details about the program, including who was targeted, are state secrets."
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Court Orders Dismissal of US Wiretapping Lawsuit

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  • Fir Pos? (Score:2, Insightful)

    by Dunbal (464142)
    Enjoy your dictatorship, America. Bush and his cronies can do no wrong, and can block and dismiss any attempt to see JUST HOW FAR they have gone. At least until after the next election. If there IS an election. You guys still have them, right?
    • Re:Fir Pos? (Score:4, Insightful)

      by fyngyrz (762201) * on Friday July 06, 2007 @03:11PM (#19772275) Homepage Journal
      Enjoy your dictatorship, America.

      This really isn't anything to do with Bush, though it is his actions we are concerned with; it is a shortcoming in the legal system, a loophole that arises because of the way lawsuits are qualified. The president has violated his oath to uphold the constitution; via US telecomm laws, wiretapping is linked inextricably to fourth amendment citizen immunity to unreasonable search; the president swears to uphold and defend the constitution, and he has not doe so, in fact a strong case can be made that he has directly violated it. There is a remedy for this. Recourse is via the congress, who should impeach and convict him for this violation of the presidential oath, a "high crime" if there ever was one.

      The problem that we actually face is a congress that has absolutely no spine and is so corrupt itself that they find it perfectly natural to violate the constitution. After all, they have done it many times by producing blatantly unconstitutional laws. Examples abound: ex post facto gun laws, suppression of speech in public areas (most recently, the ruling on that kid's Jesus / Bong banner), the witless inversion of the commerce clause, violation of the right to keep and bear arms and so on.

      We can't fix any of this because of the entrenched two party system, and because the legislators themselves are corrupt (with the exception of one or two.)

      • Re: (Score:3, Interesting)

        We can't fix any of this because of the entrenched two party system, and because the legislators themselves are corrupt (with the exception of one or two.)

        I think I may have posted this idea once before, so apologies if its familiar, but what about a movement to un-elect the incumbents?

        Next time you vote, vote against anyone currently holding office. Keep your party affiliations, if you must, just make sure the old blood is booted out the door. Make it widely known that your reasons for doing so are t

      • Re:Fir Pos? (Score:5, Informative)

        by wsherman (154283) * on Friday July 06, 2007 @03:53PM (#19772923)

        This really isn't anything to do with Bush,...

        From an article in the New York Times [nytimes.com]:

        Judge Batchelder was appointed by President George Bush, Judge Gibbons by President George W. Bush and Judge Gilman by President Bill Clinton. Judge Taylor, the district court judge, was appointed by President Jimmy Carter.

        Judge Batchelder (George Bush) wrote the majority opinion, Judge Gibbons (George W. Bush) concurred with the majority, and Judge Gilman (Bill Clinton) dissented. Judge Taylor (Jimmy Carter) was the district court judge who was over-ruled.

        • Re: (Score:3, Insightful)

          by fyngyrz (762201) *

          That's all fine, but you have to understand what happened here. They didn't say that the action (wiretapping) was legal; they just said - and I think, correctly - that the complaining party couldn't show that it had been directly affected, and so they had no standing to sue. Lawsuits require that you show that harm has been done to you - the party with the objection - in order to proceed. Without standing, this was stopped. Lawsuit is probably the wrong remedy for this issue unless the party objecting know

          • Re: (Score:3, Interesting)

            by Whammy666 (589169)
            This case is different than most civil cases. In this case, the injured party is the American public at large. The lower court has already ruled that the govt's action was a violation of the 1st and 4th amendments, plus a violation of FISA which harms everyone even if they were not an explicit target of the illegal wiretaps.

            What I'd like to know is how is one supposed to challenge a blatantly unconstitutional program when the govt has a monopoly on the evidence needed to show individual harm.

            • I give up (Score:3, Funny)

              by mdsolar (1045926)
              Now, after my party hangs up, I just blow my whistle into the phone really hard. At least I get the satisfaction of hearing them scream.
              • Re: (Score:3, Funny)

                by TheRaven64 (641858)
                Don't do that. Transmit white noise down the line for 30 seconds. Let them devote some serious computer power trying to decrypt it. Oh, and buy shares in whoever sells supercomputers to the NSA if you think you can persuade enough people to do it.
  • Tough ground (Score:5, Insightful)

    by mulvane (692631) on Friday July 06, 2007 @02:35PM (#19771763)
    The only way to prove you were affected is to be affected. The fact you were affected you can't prove even when you are affected because the fact that you were is to remain a state secret.
    • Re: (Score:2, Interesting)

      by andy314159pi (787550)
      You know a good lawyer will tell you that in the end the truth will prevail, as corny as it sounds. This irrational decision will stand until the paperwork is filled for higher appeal. I am not sure where the appeal process will take them and I am sure there are lawyers on this board who will tell us, but I still have faith in the process even though it seems to be falling short right now.
      • by mulvane (692631)
        Not a lot of trials that had state secrets in them ever made it to trial. Some have I know. The problem is from what I have seen and read, is finding people that both sides will agree on to try the case, how to maintain the classified nature of the case from ever becoming public record outside of the declassification process.
      • Re: (Score:2, Insightful)

        by Arterion (941661)
        As long as you can afford to continue litigating for the truth, you'll probably eventually get it. Oh yes. That's absolutely a process I have faith in. :-P
      • Re:Tough ground (Score:4, Insightful)

        by PopeRatzo (965947) * on Friday July 06, 2007 @05:09PM (#19773837) Homepage Journal

        I am not sure where the appeal process will take them
        I'll tell you exactly where the appeals process will take them: to a Supreme Court populated by authoritarian goons like Antonin Scalia and Clarence Thomas who have never met a boss they didn't love. It's so funny that the Court appointments by Bush were touted to "end the reign of activist judges" by escalating justices who have giddily overturned precedent and settled law in a manner that's more "activist" than anything we've seen since the Warren Court.

        We've had them throw out the appeal by someone who, told by a judge he had 17 days to file his motion, filed his motion in 16 days, only to find out that the bureaucratic rule was 14 days (the judge took a weekend into account). If this doesn't violate the spirit of the law, I don't know what would. We've seen a new strategy in cases brought by US citizens that, where instead of saying the facts or the law were against them, the judges claimed they "didn't have standing to bring suit". What does it tell you when the citizens of a nation don't have standing to bring suit against their own government. I wonder if Clarence Thomas has ever read the Declaration of Independence as closely as he read the back cover of the latest XXX DVD by Long Dong Silver.

        I've been strongly critical of the Bush administration for several years, but I've never before believed that impeachment was the best approach. That has changed. George W. Bush and Dick Cheney have clearly decided that they're going to push the envelope of legality and morality as far as they possibly can, assuming that as long as they don't get a blowjob in the Oval Office, they won't be touched. I'm not sure America can move forward until these men are brought before Congress under articles of impeachment, and Americans are going to remain angrily divided until the 68 percent of us who believe this administration has been harmful to this country get some answers. It appears that more than half of Americans agree with me that impeachment is warranted, and it's time for that half to contact their congressmen with the same energy with which they defeated the Immigration Bill. Twelve million illegal immigrants can't begin to do the kind of damage to this great nation that the two men in the White House have perpetrated. Whether they are convicted and removed from office is to be determined by Congress, but it's time for them to answer for their actions.
    • by The Angry Mick (632931) on Friday July 06, 2007 @02:44PM (#19771875) Homepage

      The only way to prove you were affected is to be affected. The fact you were affected you can't prove even when you are affected because the fact that you were is to remain a state secret.

      Ok . . my head just exploded.

      • Re: (Score:3, Funny)

        by Anonymous Coward

        Ok . . my head just exploded.
        Clean up in thread 199255. And bring a bucket. It's another logic lobotomy.
      • Ok . . my head just exploded.

        ...and how did that affect you?

      • by twifosp (532320)

        Ok . . my head just exploded.

        I assume it was not from misunderstanding the above statement, but that you just realized that the above statement is in fact reality.

    • Re:Tough ground (Score:5, Insightful)

      by jimstapleton (999106) on Friday July 06, 2007 @02:51PM (#19771973) Journal
      I've nothing against the tapping in and of itself, I keep on the legal side of the fence, and honestly, I don't know anyone who will do the tapping so I don't care if they hear me complaining on the phone to a friend about the results of that extra-bean burrito I ate...

      Regardless, a government that does not follow the rules and restrictions set for it by itself and its people is just as much of a threat as any malicious foreign party. Which leads me to my next question - can they take further action on this case, or was it pretty much shot down, and prevented from going higher? The quotes didn't seem optimistic.
      • Re:Tough ground (Score:4, Interesting)

        by Dare nMc (468959) on Friday July 06, 2007 @03:31PM (#19772595)

        I've nothing against the tapping in and of itself,

        as you say, snooping on just my phone calls, no whoop. However they have the computer power to snoop on everyones calls simultaneously, aggregate the data, look for patterns, and it is so secret they 1) can't document abuses 2) can't discipline anyone who abuses it.

        eg: if 1000 people call in to the brokers to sell their Haliburton stock at the same time, a flag might instantly pop up on the VP's computer, and automatically sell his stock first. Knowing one persons calls to trade a stock, meaningless, knowing a 1000 insiders did simultaneously, priceless.

        Japan was accused of doing stuff like this back in the 70's. eg: The phone Company would automatically take fax's sent or received out of country, and copy them to any interested company's, "in the nations best interest". So if a American executive in japan faxed out a private bid for a contract to his home office, that fax would get to the Japanese business also bidding...

        You don't think it will affects you? Business knowing they can't do business inside the US through phones, email, etc. Because they can't trust the privacy of our government...
      • Lawyers.... (Score:5, Insightful)

        by tinkerghost (944862) on Friday July 06, 2007 @03:50PM (#19772879) Homepage

        How about if you were a lawyer? Do you think the NSA would be bothered in the least about passing along information to the DOJ reguarding your stratagies in pursuing a $B class action case against the US for unlawful imprisonment?

        The problem isn't that the NSA is tapping the phones of US citizens, it's that Nixon did it & the US govt expressly wrote laws forbidding exactly what the NSA is doing - unsupervised wiretaps. They created an entire court & post approval schemes to make sure that the approval process didn't interfier with priority/time sensative investigations. I don't care if you aren't breaking the law & don't care who listens in on your calls. I do care that the Federal Government doesn't give a shit about the very rule of law it's supposed to be upholding!

        Bush & the NSA got caught with their hands in the cookie jar. Like the average 2 year old, they first denied that the facts were the facts. Once they couldn't get past that point they switched to beligerant teenager & just said 'fuck off the rules don't apply to me'. That's where we stand now. Bush & the NSA acknowledge that they broke the law & then hide behind the 'state secrets' act to shield themselves from any investigation/proscecution relating to it.

        Note how they are even stonewalling the security subcommity that's trying to look into exactly how bad of a legal fuckup this is. "This stuff is so super secret that we can't even show 8 members of Congress with top level security clearances what we are doing. The fact that we are legally mandated to advise them & we can only perform these operations under their oversight is irrelevant."

        I think this is eventually going to fall apart into a cluster fuck that's going to make Watergate look like a well coreographed ballet. This suit was turned down because the plaintifs couldn't show direct harm with the 'chilling effect' on free speech being completely dismissed by 2 judges as a 'concoction'. Eventually there's going to be an arrest made & it'll get tied to the NSA.

        The game is over once that happens, Bush has already lost almost every aspect of the 'state secrets' cover he has. As more & more information is leaked out, he's got less & less coverage. The 'unable to show cause' requirement to continue these cases is one of the last pieces of the puzzle. Once a case is tied to the project, that's gone & he's down to 'fuck off'. There's one case that's already in play because of this very fact. Parts of it were thrown out, but the judge ruled that there is enough public knowledge about the project to continue, and the fact that the party suing was accidentally provided documents showing he was under survailance is sufficient to prove cause.

        The Shrub has all the pieces he needs to do the job, he just doesn't like having to play by the rules that accompany those tools. Sorry, if he can't win playing by the rules, he needs to step asside & let someone else have thier chance.

  • by MobyDisk (75490) on Friday July 06, 2007 @02:37PM (#19771779) Homepage
    Last paragraph of the article:

    The appeals court decision does not affect another lawsuit still pending in California, in which the Electronic Frontier Foundation has sued AT&T Inc., which allegedly participated in the NSA program.
    If this ruling makes you angry, support the EFF [eff.org]!
    • Re: (Score:2, Interesting)

      by Bomarc (306716)
      Actually, if they go through their records -- they might be able to determine if they are affected... http://www.aclu.org/freespeech/protest/30298prs200 70628.html [aclu.org] As anyone been denied enterence to a Bush actvity after sending email or talking on the phone?
    • Better yet... (Score:4, Insightful)

      by msauve (701917) on Friday July 06, 2007 @02:51PM (#19771981)
      since the EFF was ineffective, support the NRA [nra.org].
    • by megaditto (982598)
      Better yet, contact your congressman (of any Party, they all want to be re-elected) and tell them why this issue is important to you and how this will affect your vote in 2008.
      • by idontgno (624372)

        Better yet, contact your congressman (of any Party, they all want to be re-elected) and tell them why this issue is important to you and how this will affect your vote in 2008.

        Your congresscritter will know better. There's no absentee voting in Gitmo.

    • by terrymr (316118)
      A wise man once said :

      We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new
    • If this ruling makes you angry, support the EFF!

      Why? They talk a great talk (and they love to talk- seems they're always giving speeches) but when it comes down to court time, their record is less than stellar, particularly with larger cases. I really don't give a shit about CSS or encrypted music/movies. I do care quite a bit when the government is engaged in unconstitutional wiretapping.

  • by RyanFenton (230700) on Friday July 06, 2007 @02:37PM (#19771783)
    There was only one catch and that was Catch-22, which specified that a concern for one's safety in the face of dangers that were real and immediate was the process of a rational mind. (Lt.) Orr was crazy and could be grounded. All he had to do was ask; and as soon as he did, he would no longer be crazy and would have to fly more missions. Orr would be crazy to fly more missions and sane if he didn't, but if he was sane he had to fly them. If he flew them he was crazy and didn't have to; but if he didn't want to he was sane and had to. Yossarian was moved very deeply by the absolute simplicity of this clause of Catch-22 and let out a respectful whistle.

                    "That's some catch, that Catch-22," he [Yossarian] observed.
                    "It's the best there is," Doc Daneeka agreed.


    Instead, it's fear of terror that's the new catch, completely unaccountable in its all-enforcing secrecy from the people the system is supposed to represent, and completely against the constitution that gives it the charter it exists to serve.

    Ryan Fenton
    • Re: (Score:2, Interesting)

      by Anonymous Coward
      "There was only one catch and that was Catch-22, which specified that a concern for one's privacy in the face of surveillance that was real and immediate was the process of a pro-American mind. The ACLU was pro-American and not subject to surveillance. All they had to do was file suit; and as soon as they did, they would become anti-American and would then become subject to surveillance. The ACLU would be anti-American to advocate surveillance, and pro-American to oppose it; but if they were pro-American,
    • by goombah99 (560566) on Friday July 06, 2007 @03:11PM (#19772277)
      The book had a lot more instances of catch-22

      1) You could only "see" Major Major Major when he was not in. If he was in you could not see him, until later, when he was out.

      2) The italian police were not permitted to tell those they arrested what they had been charged with.

      Kid's these days! How many slashdotters don't know what Catch-22 is?

      • Re: (Score:2, Informative)

        "No reason," wailed the old woman. "No reason."
        "What right did they have?"
        "Catch-22. [...] Catch-22 says they have a right to do
        anything we can't stop them from doing. [...]"
        "Didn't they show it to you?" Yossarian demanded, stamping
        about in anger and distress. "Didn't you even make them read
        it?"
  • Appeal? (Score:5, Insightful)

    by Shadow Wrought (586631) * <shadow,wrought&gmail,com> on Friday July 06, 2007 @02:38PM (#19771797) Homepage Journal
    I'd think they should be able to appeal to the Supreme Court though. How can you prove you have standing if it illegal for you to know whether you have standing or not. Even the current Court would find that one difficult I'd think.
    • by RingDev (879105)
      You'd still wind up with the same problem. The Supreme Court has already refused to hear cases based on the same merit, if you can prove you (the plaintiff) were effected, you have no case to present.

      Now, if the legislature was to subpeona the records of those wire taps from the NSA, and those lists were either leaked, or shared with some of the targeted subjects, THEN you would have a damn good shot.

      Technically, the court is following the letter of the law. Short of an activist judge, all courts would like
  • by Elemenope (905108) on Friday July 06, 2007 @02:39PM (#19771809)

    ...is the standing rulings that have collectively made it law that taxpayer participation (i.e. by paying taxes) in a program is insufficient standing for challenging that program. Is there a lawyer in the house that can explain why if I pay for something that doesn't give me the standing to complain about it? A rational explanation escapes me, but IANAL...

    I mean, I can *kind of* see that if taxpayer participation was enough, then the courts would be come much busier with complaints about government spending and programs (perhaps paralyzingly so), but there must be a better way than just excluding the entire class as lacking standing.

    • by MaceyHW (832021) <[maceyhw] [at] [gmail.com]> on Friday July 06, 2007 @03:14PM (#19772323)
      I am a law student, not a lawyer, and standing is dealt with in upper level courses that I haven't taken yet, but Wikipedia [wikipedia.org] provides the following nugget that seems to answer your question

      The Court developed a two-part test to determine whether the plaintiffs had standing to sue. First, because a taxpayer alleges injury only by virtue of his liability for taxes, the Court held that "a taxpayer will be a proper party to allege the unconstitutionality only of exercises of congressional power under the taxing and spending clause of Art. I, 8, of the Constitution." *479 Id., at 102, 88 S.Ct., at 1954. Second, the Court required the taxpayer to "show that the challenged enactment exceeds specific constitutional limitations upon the exercise of the taxing and spending power and not simply that the enactment is generally beyond the powers delegated to Congress by Art. I, 8." Id., at 102-103, 88 S.Ct., at 1954."
      (note, the article is about Flast v. Cohen but the case quoted is Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464 (1982)).

      It would seem to me that the reasoning goes something like this "you're claiming harm via the payment of taxes, so the harm has to be directly related to the payment of taxes. This means that the violation you're claiming has to be a violation of Congress's constitional authority to tax or to spend. Sorry, any old violation of the Constitution won't do."

      Now is that sane? Maybe not, but you asked for a legal argument, not a sane one.
      • by Elemenope (905108)

        Thanks for the cites.

        I'm curious, then, how this particular case lines up with the general legal notion of judicial review. It seems to me that if a citizen can't prove he/she was harmed by a government program because the existence and breadth of the program is a state secret (such that it is normally never possible to find out if you are in fact having your Civil Rights violated), the constitutionality of the program can never be challenged, which abrogates the general idea that all legislative and exe

    • by ArsonSmith (13997)
      Because pure Democracy is nothing more than Mob rule. The majority is not "Always Right"(tm)

      • by Elemenope (905108)

        I agree with you, but I don't see how that applies to my question... I was asking why it is difficult for a taxpaying citizen to raise questions of constitutional validity based on the notion that the justification of the government emanates from it acting on behalf of the people, and the means of the execution of its business emanate directly from the taxes being collected. A taxpayer's ability to challenge the constitutional legitimacy of a government program isn't mob rule in any sense I've ever heard of

  • by ushering05401 (1086795) on Friday July 06, 2007 @02:40PM (#19771827) Journal
    Our government was set up on a basis of checks and balances to keep things on the straight and narrow. In a Democracy, however, the governmental checks and balances are tier 2 of the mechanism to keep things in line. The voting populace is tier 1. Without the ability to understand what the government is doing (the information is classified) we are unable to direct the government through elections.

    We are looking at an example where the checks and balances system is being undermined at the most fundamental level.

    We seem to be living at the period in American history that future peoples will point to when discussing the unraveling of our Nation.

    Regards.
    • > We are looking at an example where the checks and balances system is being
      > undermined at the most fundamental level.

      Which is clearly why we need to return to the system of Jacks and Palances [theonion.com].
    • Re: (Score:3, Insightful)

      by Ogive17 (691899)
      I agree on the short term, the checks and balances have been eroded. But the great thing about the US system is over the long run, the wrongs are righted. We have already seen some of this. A new administration will be in place in 18 months, and we'll see how much more change that brings.
      • Re: (Score:3, Insightful)

        by ArsonSmith (13997)
        The wrongs are not righted only pushed aside while focus is redirect to the newest wrong. The old wrongs continue to be wrong.

        Look at the monkey.

        My sig is inappropriate for this post.
    • We seem to be living at the period in American history that future peoples will point to when discussing the unraveling of our Nation.

      I'll agree with you, but I'd say this period began several decades ago, when television became the primary source of political information for the electorate and the primary requisites for national leadership positions became telegenicity and demagoguery.

      Quite a few historians out there have been pointing to the decline of the free American nation for some time now. It's ju

  • FUCK! (Score:2, Insightful)

    by Anonymous Coward
    FUCK!
  • by Vellmont (569020) on Friday July 06, 2007 @02:41PM (#19771841) Homepage
    So the court has ruled that as long as the government keeps it's mouth shut about who it was spying on, no one can ever sue the government over un-constitutional spying. Great. No plaintiffs, no lawsuit, no broken laws.

    Of course at SOME point, maybe in 20 years or so, the names of who the government was spying on will have to become a non-secret, and thus available under a FOIA request.
    • by mulvane (692631)
      To bad the Statute of Limitations is being written to 19.5 years on these kind of cases.
  • by SolusSD (680489)
    This is a case where the only way the NSA would be found guilty is if they basically admitted to it-- but they don't have to because they can label their activities *state-secrets*. You can't win this one.
  • The appeals court ruled that the plaintiffs could not sue because they can't prove they were affected by the program, and at the same time, ruled that details about the program, including who was targeted, are state secrets.

    Which is all true. So they should have chosen a better angle under which to file a complaint. Either find someone affected, or argue convincingly that such state secrets are unconstitutional. Should be a breeze given the current make up of the supreme court.

    Otherwise, just put your mo
    • by StrongAxe (713301) on Friday July 06, 2007 @02:57PM (#19772065)
      Which is all true. So they should have chosen a better angle under which to file a complaint. Either find someone affected, or argue convincingly that such state secrets are unconstitutional. Should be a breeze given the current make up of the supreme court.

      Wait. You think that the current conservatively-biased court would vote against the Republican administration and its theories about state secrets and executive privilege?
  • Not a complete loss (Score:2, Informative)

    by jack455 (748443)
    IANAL I assume that the loss on appeal essentially erases the Michigan courts finding of the progral to be illegal, but at least it was overturned on the grounds of the ACLU not being harmed. I figure that's better than saying it is actually ok. or am I missing something?
  • by jd (1658) <<moc.oohay> <ta> <kapimi>> on Friday July 06, 2007 @02:52PM (#19771995) Homepage Journal
    • Those who can prove they were affected are mishandling classified material and are therefore terrorists
    • Those who can prove they were NOT affected must also be mishandling classified material, but since they're not terrorists, they must be traitors
    • Those who can reasonably conclude they were probably affected can't sue because probable cause is not proof
    • The remainder of the population is obviously hiding something and is probably being spied on by all the other agencies

    Fortunately, the decision can be appealed. No guarantee that would do any good. Since we're in election season, judges are standing by their political affiliations on all sides. Even if the decision was favorable to the plaintiffs, though, there's no reason to believe that it'll do any good. How many Republican senators are going to want to look weak on national security right now? That means even if the matter does stay in the courts, it is very unlikely anything will happen before late in November 2008. Of course, if it does stay in the courts, the NSA could just plead guilty and have the President issue a full pardon the following day, rescinding the finding and penalties exacted.

    • by TubeSteak (669689)

      Those who can reasonably conclude they were probably affected can't sue because probable cause is not proof

      Normally, probably cause is enough to move a case into the discovery process, where you get real proof (or you find nothing and your case dies).

      Unfortunately, the goals of the Discovery process clashes with the Government's contention that everything is a state secret. So even if they had standing, the court seems to be saying that their claims won't get very far anyways.

  • by Zak3056 (69287) on Friday July 06, 2007 @02:55PM (#19772043) Journal
    Wow, so the appeals court upholds the violation of the fourth amendment, and at the same time pisses all over the first (petition for redress.) Truly, this is an awe-inspiring day. Surely, the men who signed the Declaration of Independence, almost exactly 231 years ago would sing from the rooftops in joy at what became of the nation that they pledged their "lives, fortunes, and sacred honor" to create.

  • by rpillala (583965) on Friday July 06, 2007 @03:01PM (#19772123)

    Maybe the question is naive and the game of chess is obvious to everyone else. The submission says this ruling puts the ACLU in a difficult position. They are not permitted to know whether they are affected by the program or not. Perhaps the difficulty of the ACLU's current position is an unintended consequence, but that seems unlikely to me. What seems more likely is that the court did this as sort of a gotcha, as in "better luck next time, smart guy." I get this feeling every time I hear a lack-of-standing ruling. I understand that it's a valid concept it just sticks in my craw.

    I admit that it's just a vague sense of the way things are in this country that leads me to believe this way. I wouldn't really know how to begin looking for other examples of this legal maneuvering in the recent past (or any past.) Can anyone give me some insight into this or a place to start reading?

  • by porkface (562081) on Friday July 06, 2007 @03:06PM (#19772209) Journal
    It's time for the EFF and some supernerds to entrap the government.

    Plant some communications that raise the government's interest enough to show up to investigate. Ensure the communications, once the plot is revealed, would not be judged to be a real threat or significantly illegal otherwise. But make sure it raises ire and causes a response that could not otherwise have been wise to the communications had they not been illegally snooping.

    Bonus points if you can make it high profile enough that Cheney cannot absolve himself of knowledge of the details of the trap.
    • Well, that's a nice step 1.

      Now, for step 2, how are you going to prove before the court that the government actually wiretapped you? That's the crux of this decision; you can't sue if you can't prove you're a victim, and who's a victim is protected by the nebulous modern legal construct of "state secrets."
  • by downhole (831621) on Friday July 06, 2007 @03:09PM (#19772259) Homepage Journal
    Well, I guess I am about to be modded into oblivion by the anti-Bush crowd, but I don't see anything wrong with this ruling.

    IANAL, but to my knowledge, in order to sue over an act (tort), you have to prove that you were not just negatively affected by that act, but affected in a specific dollar amount which the court can award you as compensation for the act. What measurable harm have these guys suffered? I don't think that the possibility that one of your conversations might be in a secret NSA database causes you any measurable harm that a court could compensate you for. If they have to ask the NSA whether they have any such records, that in and of itself serves as proof that they were not harmed in any way by the records (if they do exist), since if they were harmed in any way, they would be able to prove that in court.

    I don't think it's a good idea either to seek to challenge laws in court on the grounds that you paid the taxes that support the program or somesuch. That is trying to place the courts in a role they were never meant to take - of judging the effect of laws. Passing and repealing laws is the job of our elected representatives in Congress and the President. Provided that the laws do not directly contradict the Constitution, the Courts have no say in what those laws are. (yes, I know that we seem to be steadily accumulating laws that do directly contradict the Constitution, but that's another post) If you don't like the laws, you're going to have to take it up with your elected Representatives, and you're going to have to accept that the American people do not necessarily agree with you on all issues, and they have as much right to their views as you do. If you want to change things, you have to convince your fellow Americans that you are right and they should vote your way.
    • For a tort, you do have to prove financial harm. However, this case wasn't a tort, it was about violating the fourth amendment (and the first, but that was the weaker argument).

    • by Apple Acolyte (517892) on Friday July 06, 2007 @03:45PM (#19772795)
      The fact is, the legal system and especially the federal judiciary loves to throw out cases based on technicalities such as this one. There are a whole host of judicial doctrines that govern whether or not a case will be heard, such as standing, ripeness, moot issue and political question. Courts always look for sufficient standing to bring a lawsuit; they look to see if the issue is "ripe" (ready to be ruled on); they look to see if the case's outcome would be moot; they refuse to hear cases involving political questions that would unnecessarily pit them against one of the other branches of government. The courts are there to rule on violations of the law (including the Constitution), not presumptive violations as identified by laymen regarding government acts that were based on ostensibly legal grounds. And for a case to succeed, it must pass those crucial judicial tests. Except in certain bright line cases, the courts operate based on the assumption that the actions of the other two branches are lawful. That's why if people are angry about actions of the executive, the primary remedy is usually legislative; the judicial remedy is secondary. (IANAL, but I hold a Political Science degree and took a lot of pre-law as an undergrad.)
  • by Phoenix666 (184391) on Friday July 06, 2007 @03:19PM (#19772401)
    Congress won't enforce the law. The Executive branch won't police itself. The Judicial branch rules citizens can't sue because the details are classified by the Executive branch. It's a perfect, closed system. No one in the government is accountable to us anymore.

    The government no longer answers to the citizens, according the the system we set up to run it. It's a very short, swift step from where we are to where ordinary citizens disappear in the night (non-Muslims, that is). We won't know exactly when that moment arrives, because we won't be told, because no one in the government obeys or enforces the law anymore.

    Let's assume for a moment that you're not someone who buries his head in the sand, saying 'As long as I'm not doing anything wrong, why should I care what the government does to others?' Let's assume that your response to crisis is not to hop in your SUV, drive down to the mall, and go shopping. And let's further assume that you're a red-blooded, patriotic American who really cares about freedom and the rule of law, and about protecting the country against all enemies, foreign and domestic.

    So ask yourself, what recourse do you have now?
    • by triskaidekaphile (252815) <xerafin@hotmail.com> on Friday July 06, 2007 @03:55PM (#19772957) Homepage

      Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn that mankind are more disposed to suffer, while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.

      Sound familiar? [archives.gov]

  • I have personally always been of two minds on the matter.

    I believe that it's a ton of FUD that people are thinking that we're in the midst of creation of an awful big-brother type government. We have way too many people, and we're way too paranoid to let that happen. You need a semi-complacent population (you listening Britain??) that almost WANTS a nanny-state type surveillance for that sort of thing.

    Do I think that international calls should be monitored with known/suspected terrorists? You bet your
  • What is the use of laws if they are to be loopholed and danced around? Laws were made in place to provide a groundwork for a healthy, thriving society. We have widdled these ideals so far down that the very foundation of these laws can be bypassed.

    We don't need more laws, we need more JUSTICE. Nothing is going to f***ing happen in this country until people start standing up for their morals as a nation. No laws, MORALS.
  • 1. This 1-1-1 decision [ohioelection2004.com] (pdf) is just on technical grounds -- plaintiffs' lack of standing.

    2. In view of the concurring and dissenting opinions, and the importance of the subject matter, it is likely to receive Supreme Court review.

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