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Supreme Court Won't Hear ACLU Wiretap Case 323

Posted by kdawson
from the standing-knee-deep-in-paradox dept.
I Don't Believe in Imaginary Property writes "The US Supreme Court refused without comment the ACLU's appeal of a lower court ruling that prevented them from suing over the government's warrantless TSP program. The problem was a Catch-22: they lack legal 'standing' to sue over it because they can't prove that they were suspected terrorists, but neither can they find out who was actually suspected, because this is a matter of national security." Update: 02/20 00:17 GMT by KD : Removed an incorrect statement after a reader pointed out that, with the expiration of the Protect America Act this weekend, foreign surveillance will revert to oversight by the FISA court.
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Supreme Court Won't Hear ACLU Wiretap Case

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  • by Sepiraph (1162995) on Tuesday February 19, 2008 @06:44PM (#22481440)
    Some of these guys are hand-picked by the very same administration, did you expect these shrewd men and women to bite the very hand that feeds them? Don't expect any real change unless there are fundamental changes to the whole administrative.
  • by KingSkippus (799657) * on Tuesday February 19, 2008 @06:45PM (#22481446) Homepage Journal

    What's kind of depressing is how much the general public just doesn't care about this at all.

    I'll admit up front: I have things to hide. Dirty little secrets that are none of your business, and that the government doesn't need to know. Things that are embarrassing, things that could be used to damage my reputation, nothing particularly dangerous, but stuff that should be between me, myself, and I, and no one else.

    I think most people are like that, even the ones who proclaim so loudly that they have nothing to hide. I mean, if you have something to hide, you're a terrorist, right? The government could never use your dirty little secrets in any shape, form, or fashion, right? Because the government never loses our personal information, never has "leaks" that could reveal compromising information, would never do anything seedy for purely political purposes?

    All of those who have "nothing to hide" are really starting to piss off those of us who do.

  • Quick Summation (Score:4, Insightful)

    by milsoRgen (1016505) on Tuesday February 19, 2008 @06:45PM (#22481458) Homepage

    "It's very disturbing that the president's actions will go unremarked upon by the court," said Jameel Jaffer
    That about sums it up, but it's certainly not the first 'very disturbing' action we the people have had to witness and suffer through during these last 2 terms.
  • by KublaiKhan (522918) on Tuesday February 19, 2008 @06:46PM (#22481476) Homepage Journal
    Something about how no charges shall issue except on a warrant or something like that?

    Wasn't one of the bits in the declaration of independence criticizing King George III about secret trials?

    Bit sad, really, that it's coming to this.
  • by greenslashpurple (1236792) on Tuesday February 19, 2008 @06:49PM (#22481542)
    And an independent media (e.g. James Risen at the New York Times) to publish some lists of people who have been illegally wire-tapped. Or maybe some technician who works for a major communications network can upload the list of names/numbers they've been tasked to set up monitors on.
  • Olden Times (Score:5, Insightful)

    by Sanat (702) on Tuesday February 19, 2008 @06:51PM (#22481566)
    It is interesting to see what the Supreme Court has ruled upon or refused to advise upon from the past... whether the subject was slavery or other free rights... they constantly get it wrong. Example:

    In March of 1857, the United States Supreme Court, led by Chief Justice Roger B. Taney, declared that all blacks -- slaves as well as free -- were not and could never become citizens of the United States. The court also declared the 1820 Missouri Compromise unconstitutional, thus permiting slavery in all of the country's territories.

    The case before the court was that of Dred Scott v. Sanford. Dred Scott, a slave who had lived in the free state of Illinois and the free territory of Wisconsin before moving back to the slave state of Missouri, had appealed to the Supreme Court in hopes of being granted his freedom.

    Taney -- a staunch supporter of slavery and intent on protecting southerners from northern aggression -- wrote in the Court's majority opinion that, because Scott was black, he was not a citizen and therefore had no right to sue. The framers of the Constitution, he wrote, believed that blacks "had no rights which the white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery for his benefit. He was bought and sold and treated as an ordinary article of merchandise and traffic, whenever profit could be made by it."

    Referring to the language in the Declaration of Independence that includes the phrase, "all men are created equal," Taney reasoned that "it is too clear for dispute, that the enslaved African race were not intended to be included, and formed no part of the people who framed and adopted this declaration. . . ."

    props to PBS

    This is the same Catch-22...
  • Catch-22: The U.S. government is too corrupt to investigate corruption.

    Catch-23: Oil and weapons investors Cheney and Bush want the price of oil and weapons to rise, so Iraqis must die.

    Cheney and Bush have killed more Americans than the terrorists, and far more Iraqis than Saddam Hussein.
  • by AP2k (991160) on Tuesday February 19, 2008 @06:56PM (#22481614)
    I'm sure the vast majority of Britons were unaffected by illegal search and seizure by British authorities, but the American founding fathers thought it was wrong to do to anyone under any circumstance. Are you calling our founding fathers terrorists, comrade?
  • by gillbates (106458) on Tuesday February 19, 2008 @07:06PM (#22481784) Homepage Journal

    The fact that the government is let off the hook because the victims can't legally show harm - that is, they are prevented from actually knowing if their privacy is invaded - is quite disturbing. A child pornographer could use the same argument; that because his children (err, victims...) aren't old enough to understand the harm done to them, that they have no grounds for objecting to their pictures being taken.

    I think, though, that there's a double standard when it comes to government. Unlike "terrorists" - which are presumed guilty except when there exists incontrovertible exculpatory evidece - the government is presumed innocent, and its evidence and intentions beyond reproach, except when the accused manage, by some legal loophole, to show otherwise.

    Justice at the federal level has completely changed:

    • Instead of being presumed innocent, the accused are presumed guilty, and not even tried, except in cases where their lawyers manage to find some way around the executive branch.
    • Even when the accused do get to trial, they are tried in secret courts, where they are not allowed to see the evidence against them, if they are allowed to attend the trial at all.

    "If you aren't doing anything wrong, what do you have to hide?"

    Indeed, all patriotic Americans need to ask themselves this question of the government, particularly the executive branch. If indeed, they aren't doing anything wrong, why must they keep everything so secret - even from Congress and the Courts? Isn't it more likely that they are using the secrecy to cover up activities that most Americans would consider wrong?

    Most worrisome is the fact that we have gone from an open society which feared nothing ("The only thing we have to fear is fear itself...") to a society where everyone is suspect and fear of what one might do is sufficient to deny anyone and everyone their rights under the law. The justice system has been transformed from an open and transparent process which followed the principles of fairness to a capricious and arbitrary exercise of power.

  • by dpilot (134227) on Tuesday February 19, 2008 @07:06PM (#22481786) Homepage Journal
    But then you'll get the argument that the Declaration of Independence is an historical document, and has no legal force like the Constitution. Those will be the same people who tell you that because some individual right is not specifically mentioned in the Constitution or Amendments, you don't have it. (I don't have the patience at the moment to look up the specific contrary language in both the Constitution and the Bill of Rights.)
  • Bah (Score:2, Insightful)

    by Puffy Director Pants (1242492) on Tuesday February 19, 2008 @07:07PM (#22481790)
    We need a Congressional hearing plain and simple. The US Congress doesn't have to worry about standing, it's their job to be concerned about the business of the gov't. Too bad they're so lazy.
  • by SlowMovingTarget (550823) on Tuesday February 19, 2008 @07:08PM (#22481814) Homepage

    What, you want the U.S. Supreme Court to be forced into taking cases that don't meet legal criteria for bringing a lawsuit? That doesn't make sense. Any court in the U.S. has that power, by the way, not just the Supreme Court.

    Would you prefer, then, that the U.S. Supreme Court hear the case and start issues subpoenas for classified information on behalf of the ACLU? That makes even less sense, as then the SC would be exercising far too much power.

    If there is any digging to be done, the ACLU is not the one to do it, nor is the Supreme Court. That power is granted to the U.S. Congress by the Constitution. Congress must investigate, hold hearings, and can even produce a report detailing "injured" parties. It is at this point that those injured parties could sue, or join a class action suit brought by the ACLU.

    By refusing to hear the case, the U.S. Supreme Court is correctly interpreting the law and the Constitution with regard to what powers it holds. In other words, the refusal was just right.

  • by Qzukk (229616) on Tuesday February 19, 2008 @07:09PM (#22481818) Journal
    You're not that important to the government

    How important is "that important"? As the marginal cost of wiretapping decreases towards zero, I think you'll find that more and more people are going to be "that important".
  • Uh, it doesn't have to be with a person that knows who you are. How many times have you talked with a person that didn't know your name or could't identify you? So these wiretappinhg issues are also about the right to privacy when you wish the privacy te remain intact. Calling to find out when a certain church is open, calling to ask the location of a certain bookstore, adult vieo rental store, or any other general information conversation can be logged with very real weight but the second person doesn't have the same need for privacy in these cases since they are tied to the location in other fashions. the wiretapping issue completely dissolves the privacy of phone conversations unless there are stopgaps in place to prohibit the misuse of data collection. Namely warrants and limitation scopes of information retrieved. That's why they were put there in the first place. So that people in the future wouldn't abuse the access to this type of information, not so that they could do an end run around the constitutional rights of the citizens and bypass the checks and ballances. The "it makes it harder" line is BS since making it easy isn't the only goal. We're protecting our way of life as well as our lives here. So to all those who claim patriotism without knowing what it means to sacrifice ease of safety for peace of moral mind, go look up the history from where we came and what we've been through to get the rights that are being stripped from us.

    "The only thing we have to fear is fear itself."

    That's because fear is the only thing that will always lead us to hurt ourselves while we are under its control. The fear of dying will strip us of our rights to live. The threat of anonymous terrorists will allow the domestic terrorists we elected to weild impending doom over our heads and threaten us with more attacks unless we bow to the demands to give them more power. If we do not obey or question that power we are labled enemy combatants and no longer have the rights we were afforded as citizens and we are then shipped away to where the remaining laws we haven't lost cannot even protect us. Torture by any other name, and terror by any guise are both using fear to conquor the will. And we are letting it happen. /rant (got a little carried away there)
  • The Rule of Law (Score:5, Insightful)

    by Tom (822) on Tuesday February 19, 2008 @07:14PM (#22481864) Homepage Journal
    ...is over in the US. One basic principle of it is that the law applies to everyone equally, that nobody is "above the law". There can be exceptions and special priviledges as long as they are written into the laws. So in most countries MPs are exempt from prosecution, for good reasons, and that's ok because it's part of the process.

    In the US, the rule of law has been abandoned. You are back to the rule of power: Everyone does whatever he can get away with. Your so-called president leading the way.

  • Re:Bah (Score:2, Insightful)

    by Grandiloquence (1180099) on Tuesday February 19, 2008 @07:17PM (#22481906)
    "Lazy" is one possible explanation. "In cahoots" is the other. I know which one seems more plausible to me...
  • WRONG! (Score:2, Insightful)

    by Tanman (90298) on Tuesday February 19, 2008 @07:25PM (#22482026)
    No, this is 100% Fed-Certified Grade-A bullshit. Why? Because this is a green light for the crooks in power to continue doing this kind of thing. And what kind of trial do you think you will get with the evidence collected?

    Guess what, you won't be tried. Ever. You will be held so that they can illegally solicit more evidence from you through nefarius means such extradition out-of-country, or just a secret location somewhere in Washington. Did I mention that the illegal solicitation of further evidence means you will be chained up in a dungeon for 10-15 years with no legal recourse whatsoever being exposed to God-knows-what kinds of "interrogation techniques?"
  • by Zordak (123132) on Tuesday February 19, 2008 @07:35PM (#22482136) Homepage Journal

    Some of these guys are hand-picked by the very same administration, did you expect these shrewd men and women to bite the very hand that feeds them? Don't expect any real change unless there are fundamental changes to the whole administrative.
    Yeah, just look at John Paul Stevens and David Souter. Nothing but a couple of lap dogs for the Republicans.
  • by huckamania (533052) on Tuesday February 19, 2008 @07:41PM (#22482224) Journal

    but stuff that should be between me, myself, and I, and no one else
    Then why are you talking about it on the phone? Are you calling yourself?

    The reason why SCOTUS refused the case is because the ACLU doesn't have standing. Those who are performing the wiretaps would be really, really stupid to show the list of those they are tapping to anyone else, especially a group on a fishing expedition to sue them.

    If the wiretappers did show the list to the ACLU, the ACLU would sue them for doing the wiretaps. Then, they would sue them for releasing the information. Can't have the government leaking stuff like this even if it is because they filed a lawsuit and won.
  • Hmmm... (Score:5, Insightful)

    by haakondahl (893488) on Tuesday February 19, 2008 @07:45PM (#22482278)
    I Don't Believe in Imaginary Property writes: "...no one knows or can know whether they were illegally spied upon."

    Supreme Court writes: "We don't believe in imaginary problems."

  • by tgatliff (311583) on Tuesday February 19, 2008 @07:56PM (#22482390)
    So why again does Bush and Cheney want the price of oil to rise? Last time I checked they no longer own any oil assets and would not personally profit for a rise or fall in oil... If they did, no doubt Congress would scream this fact for all to hear.....

    Also, the Oil futures market is much larger than anything going on in Iraq. Oil is rising not because of anything Bush or Cheney or the US is doing, but rather because you have over 2 billion people slowing rising in the middle class in Asia. Not to mention that "easy" oil is getting increasing more difficult to find. The good side is that alternate energy sources are finally getting a chance to prosper and we should be in the next decade finally be able to break our dependence on middle eastern oil sources..

    Finally, just for the record I am certainly no fan of Bush, but I also dislike thoughtless propoganda statements with no logical backing...
  • by palegray.net (1195047) <philip.paradis@pa l e gray.net> on Tuesday February 19, 2008 @07:58PM (#22482418) Homepage Journal

    As demonstrated by their refusal to use it?
    Sometimes that's the greatest power of all... the ability to stand by and do nothing with zero consequences.
  • by localman (111171) on Tuesday February 19, 2008 @08:02PM (#22482470) Homepage
    I agree with the sentiment expressed in your post, but factually I don't believe the Bush/Cheney war has surpassed Saddam's death toll yet. Most famously he massacred around 100,000 Kurds [wikipedia.org] between 1986 and 1989. He did plenty of other awful things too. The Iraqi body count [iraqbodycount.org] has the war approaching 90,000.

    Of course, both of these numbers are absolutely abominable, and this war is not about those killings (the US was buddies with him back then), so it's not like one is the cost of stopping the other. Still, it's worth noting that Saddam was a bad, bad man.

    Cheers
  • by Sancho (17056) on Tuesday February 19, 2008 @08:05PM (#22482498) Homepage
    Perhaps it is right according to the letter of the law, but it's still troubling. As it stands, the government can seemingly declare any potentially unconstitutional act as "top secret" and they get no oversight. We can't even get the courts to take a look at it, because we don't know the details of the act. It's really quite disturbing.
  • by Opportunist (166417) on Tuesday February 19, 2008 @08:13PM (#22482570)
    The Founders of the US were under the impression of a government that didn't represent them, a government they wanted to separate from, a government that offered them no benefit but only burden, a government that only siphoned money away from them, locked them in and forced them to do business only the way they and their protected industries wanted, a govern...

    It's kinda bad that D.C. ain't as far away as London, separating from that could be a tad bit harder...

    Anyway, where was I? Right. Maybe warrantless searches were no problem for people living in England, but maybe they were for the people in colonies who had "lesser" rights, who were not considered full citizens? Also, don't forget the third amendment, which has little to no meaning today (it's the part of stuffing soldiers into your homes), but was a serious and important issue in the 18th century.

    Times change, as do requirements for laws. Of course the founding fathers didn't put too much thought into wiretapping or air travel restrictions. How much thought do you put into the effects of human cloning, the human rights of clones or the property and/or citizenship state of people who decided to be frozen and reheated when they could be cured?

    Laws are a matter for times. And they should adapt. Unfortunately, it seems we're today too busy spending time at the mall to concern ourselves with such petty things as privacy or politics. Or, as Homer Simpson put it, we elect people so we don't have to think ourselves.
  • by Dachannien (617929) on Tuesday February 19, 2008 @08:22PM (#22482656)
    Well, the difference between the police hanging out in your house and the feds tapping your phone is that in the latter case, you don't know about it.

  • by smidget2k4 (847334) on Tuesday February 19, 2008 @08:26PM (#22482700)
    The Court lacks the power of the sword and the power of the purse. They have no enforcement power and no monetary power. They are only as powerful as the other branches let them be. It is a very delicate balance. Of course, they are utilized by the elected branches to decide issues that would be political suicide to take a stand on, and that is what they are they for.

    That is why they are appointed for life "while in good behavior". This has come to mean anything short of being imprisoned or bribed (even then...) will let you keep your judgeship. But these people are supposed to be the intellectual barrier between the law and the masses. They are supposed to keep congressmen, who have to follow the whims of their constituents, in check. And for the most part, they do.

    Putting judges under popular control would allow all of the branches to fall to "fly-by-night" laws and legislation, severely undermining the relatively stable system we have now.
  • by oldhack (1037484) on Tuesday February 19, 2008 @08:27PM (#22482712)

    Our enemies want to destroy our way of life, let's not hand them the knife and stretch our throats.
    This demonstrates that our enemy *HAVE* destroyed our way of life, you numbskull.
  • by Opportunist (166417) on Tuesday February 19, 2008 @08:52PM (#22482956)
    What enemy? Some terrorists who landed a single (note, for the record, ONE) blow to the US that shook the whole country in its foundations? Are you kidding? Talk to anyone from Israel or Northern Ireland and they will point and laugh at you. That's your enemy? I'm more scared of kids with ink in their water pistols.

    What way of life? Fear- and scaremongering? You want to protect that? Because that's what the US are about today. The US used to be the epitome of freedom. Of liberty. The place to be on this planet if you are a freedom loving person who wants the sky only as his limit. This changed a lot, I can tell you. The US changed from that good Uncle Sam that protects us from the dreaded communists, the good guy we support and hold in high esteem, who we would fight and die for if need be, because we know that he would do the same for us, into some old bastard that would sell us our own blood if we let him, and if we don't, he'll just come and squeeze us 'til we hand it over for free.

    The only thing that is worth living is freedom. Freedom, though, requires trust into your government, and a government that does not trust its people does not deserve the trust of the people. Because the only right to exist for a government is to serve the people that carry it. If it does not do this, it is obsolete and needs to be replaced by one that does.

    IIRC, that's what your founding fathers did. Maybe this needs to be repeated from time to time, so people don't get fat and lazy.
  • by element-o.p. (939033) on Tuesday February 19, 2008 @09:02PM (#22483052) Homepage
    Yeah, that's pretty much it. When I first figured that out in high school civics, I thought it completely unfair, but think about it...it's the Supreme Court. If you think a law is unconstitutional, you have to break the law, get arrested, then have your day(s) in court. Basically, nothing gets changed unless you are willing to take a stand.

    While it kinda sucks for the activist, I guess it's one way to keep from having to hear cases from every stupid schmuck who wants to challenge a law that doesn't personally affect him/her from wasting the court's time with trivial lawsuits.
  • by Anonymous Coward on Tuesday February 19, 2008 @09:51PM (#22483446)
    It's also worth noting that, contrary to popular belief, denial of certiorari does not mean that the Court "agrees" with the lower court. It could mean, for instance, that this particular case is not conducive to a proper analysis/determination of the issue. It could mean that the four who would vote to hear it think the rest of the Court isn't "ready" to come around and thus will granting cert likely result in the "wrong" outcome. Or it could mean that instead of challenging the wiretapping (of which they don't even know they've been the target), they should be challenging the failure of the NSA to disclose whether they've been targeted.
  • by Anonymous Coward on Tuesday February 19, 2008 @10:11PM (#22483574)
    Oh boy. Someone hasn't been paying attention:

    If someone could point out the warrantless surveillance program that is known to exist today, I'd appreciate it.
    OBVIOUSLY we do not have evidence for that. However, based on past experience of abuse of wiretapping powers, we can reasonably assume it hasn't suddenly disappeared. You're basically saying it can't happen anymore because now it's illegal - well it was pretty much illegal before, wasn't it, and they did it then too! We're talking about people who don't obey the rules - they didn't obey the old ones, and there's no reason to expect they've suddenly become scrupulously diligent about following the new ones.

    And yes, the burden of proof is on you, as simply asserting that one must exist doesn't quite cut it.
    No, the burden of proof is on YOU. They have already demonstrated their willingness to flout the law, whatever it happens to be. They've done that, lied about it, covered it up as much as possible. With such a rich history of bad faith abuse, we have no reason to believe that anything has changed. Just like Microsoft.

    Remember how TSP came to light: leaks to the New York Times. The government simply cannot keep such controversial programs secret. There is no evidence of any current, ongoing "warrantless" surveillance.
    Are you for real? Why don't you read back what you just wrote? We only knew about the previous program because of *leaks*! And now you say any current program doesn't exist because no more leaks have emerged? Huh?! Maybe they fired that one honest employee who leaked the data in the first place!

    I don't understand how you can be so naiive and eager to believe the "party line". Look at the (very) recent history of this matter. You'd do well to be a little less automatically trusting and a little more suspicious of those with such opaque and unaccountable powers, the obvious desire to use them, and a long history of lies and deception.
  • by Chris Burke (6130) on Tuesday February 19, 2008 @10:12PM (#22483586) Homepage
    By rejecting the law, the Court appointed itself ultimate arbitor of Constitutionality which is not an expressly enumerated power.

    Yes, it is: "The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority"

    What do you think a judge does, if not arbitrate? This is the fundamental meaning of "judging", to interpret the meaning of the law, and when multiple laws conflict, to decide which applies and which must fold. And in the case of a law passed by Congress and the Constitution, the laws of Congress must always fold.

    Or more to the point, what do you think should happen when a case comes before the Supreme Court, and a law passed by Congress is in conflict with the Constitution?

    No it decreased the power of the other two branches, because they can only act with the approval of the Judicial Branch - not striking down a law is a tacit approval. To play devil's advocate - why can't the President serve as an arbitor of Constitutionality by rejecting the execution of a law?

    The other two branches have always been subject to decisions made by the Courts in cases that came before it. To suggest otherwise is to imply that the other two branches are in fact above the law and cannot be brought to justice for violating the law. That may be a popular theory these days, at least for the Executive branch, but it has zero Constitutional basis.

    As to your "devil's advocate" question: Because the Judicial power isn't granted to the President. The Executive branch can in fact decline to enforce a law, this is what the DoJ does all the time by choosing who to prosecute and who not to. But that decision does not in any way constitute a legal decision, because matters of law are decided by a Judge. And if a certain law requires action of the Executive branch, then in a case brought before the courts, the Judicial branch has the power to render judgement against them and a proscribe appropriate penalties.
  • by Nimey (114278) on Tuesday February 19, 2008 @10:15PM (#22483608) Homepage Journal
    The Tree of Liberty must be refreshed from time to time with the blood of patriots and tyrants, as Thos. Jefferson told us.

    This tree looks distinctly drought-stricken.
  • Re:WRONG! (Score:2, Insightful)

    by metachimp (456723) <tadish.durbin@g[ ]l.com ['mai' in gap]> on Tuesday February 19, 2008 @10:27PM (#22483698) Homepage
    It happened to Jose Padilla, U.S. citizen.
    I don't think you realize what happens when the president declares you an enemy combatant in this manner. It would be illegal for the local police to investigate. It would be illegal for your family or friends to ask about what happened to you, and illegal for anyone to tell them. All your assets would be frozen, so you cannot hire a lawyer, but that doesn't matter, because it is illegal for anyone to work on your behalf. Read these things, it's all there.

    All this on the President's say-so, and his say-so alone.
  • Whoever destroyed the World Trade Center killed 3,000 Americans. The decision of Cheney and Bush to have a war with Iraq has killed more [icasualties.org]" Americans than that.

    See these stories, for example:

    Iraq Conflict Has Killed A Million Iraqis: Survey [commondreams.org].

    The number is rapidly rising. In October 2006 the number of Iraqis killed was estimated to be 655,000 [guardian.co.uk].

    The highest estimate of Iraqis killed by Saddam Hussein was 1 million, so the U.S. government has killed more than Saddam. See, for example, Survey: Saddam killed 61,000 in Baghdad [chinadaily.com.cn].
  • Re:In other words (Score:5, Insightful)

    by drinkypoo (153816) <martin.espinoza@gmail.com> on Tuesday February 19, 2008 @10:43PM (#22483810) Homepage Journal

    Except that preventing someone from buying weed isn't quite the same as listening in on their phone calls and reading their mail without a warrant.

    Life, liberty, and the pursuit of happiness. The fact is that the constitution does not grant the federal government the right to tell us what can go into our bodies. Weed was made illegal under the much-abused interstate commerce clause.

  • by roystgnr (4015) * <.roystgnr. .at. .ticam.utexas.edu.> on Tuesday February 19, 2008 @11:44PM (#22484178) Homepage
    a US citizen who is tried using evidence obtained in this manner would finally have standing to contest the government's actions

    What makes anyone think that illegal wiretapping is about giving people fair trials? They're not even concerned with convicting suspected terrorists, and the fact that these wiretaps are too dubious to deserve even FISA warrants should make it clear that terrorists aren't the target.

    FISA was created after Nixon's attempts to use espionage for political gain. If Bush is doing the same thing then the illegally obtained results won't be seen by judges. Anything incriminating will be leaked to the media or used to anonymously blackmail the target; anything innocent will be exploited by campaign strategists. Even if the most damaging use of an unwarranted wiretap's results is a prosecution, it won't be done by introducing unconstitutionally obtained evidence in court. They'll use "anonymous tips" to launder the results to get seemingly-legit evidence instead. The "fruit of the poisoned tree" rule won't help when the connection between the evidence and it's original source has been hidden from sight.
  • Due Process (Score:1, Insightful)

    by Anonymous Coward on Wednesday February 20, 2008 @10:10AM (#22487366)
    I could point out that the ACLU's challenge is about behavior before the expiration of the Protect America Act, so its expiration is irrelevant. I could proceed to pick apart the weak assumptions in your argument. But I don't need to do any of that because you have studiously ignored the real issue here.

    It really doesn't matter what rhetoric you can use to justify domestic spying programs. As this is a nation of laws, it should be decided according to law. (I recall a Bush admin official claiming that they can spy on anyone at anytime because Bush is the commander-in-chief. You'll forgive me if I'm not convinced by that sort of reasoning.) That's the issue you need to be addressing. When an abuse actually takes place, what legal due process can ordinary folks use to (1) discover the extent of the abuse, (2) receive compensation for damages, and (3) bring to justice those responsible?
  • by The One and Only (691315) * <[ten.hclewlihp] [ta] [lihp]> on Wednesday February 20, 2008 @10:42AM (#22487750) Homepage
    Thomas Jefferson would find himself on the no-fly-list today.
  • by runderwo (609077) * <runderwo@noSPAm.mail.win.org> on Wednesday February 20, 2008 @11:18AM (#22488222)

    How you figure?

    Marbury v. Madison established that the judicial power the Court was granted was sufficient to establish that "an act of the legislature repugnant to the constitution is void". It was the first decision to defer to a "founders' intent" argument to read non-textual power into the Constitution -- that of removing invalid laws from the books.

    The founders didn't write in the Constitution that illegal laws were to be voided by the judiciary, relying instead on inferior courts being bound by the Supreme Court precedent if the matter again reached their desk at a later point.

    And the founders certainly didn't write that interpretation should be based on their perceived intent, rather than on the text of the Constitution they painstakingly crafted. Even in the case that they had, most certainly no intent other than unanimous intent would be an acceptable basis for further argument, considering their wildly differing opinions on many aspects of the Constitution.

    Wouldn't you think they carefully considered the impact of each word when crafting the text? Why do we allow our partisan modern judiciary to second-guess them, second-guess our reading skills, and tell us what they think the Constitution 'really means'?

    Well, we know why. Supreme Court justices can only be removed from office pursuant to a conviction for violating their oath of office, and yet they have convinced us that they can tell us what the very document that binds their oath of office 'really means'. And we are to respect that utterance as the highest decree in the land. Talk about job security!

    Marbury started us down a long, painful road of judicial tyranny. It's not that the judiciary grabs power for itself, as you point out. They already have what they sought, because they are in the position of being the most Godlike political figures on earth.

    The tyranny comes when the judiciary, over the past 150 years, has utterly failed to constrain the enumerated powers of the federal government in any meaningful way, has utterly failed to protect the natural rights of the individual to his life, liberty, and pursuit of happiness, and has even had the audacity to roll back Constitutionally enumerated rights in the name of the Drug War, in the name of the Global War On Terror, in the name of Progressivism, in the name of Public Safety, and in general whatever any federal social-engineering effort or boogeyman required. And because of its stature, its passive endorsement of the growth of government is taken as the highest endorsement.

    It's long past time we held justices accountable to their oath of office, and stopped allowing them to rewrite their own terms of employment through "interpretation".

Life. Don't talk to me about life. - Marvin the Paranoid Anroid

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