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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 alapbj (1242530) on Tuesday February 19, 2008 @06:45PM (#22481462)
    Let me get this straight - we will have to rely on a suspected terrorist to sue for this to go forward?
  • by moderatorrater (1095745) on Tuesday February 19, 2008 @06:56PM (#22481618)
    As demonstrated by their refusal to use it? The Supreme Court is probably the most easily abused of the three branches, it's true, but you've got to remember that there are still checks and balances. The president can refuse to execute a ruling (technically it's illegal, but it's been done), Congress can rewrite the law in a way that gets around the ruling, and they can even start the process of amending the constitution.

    Looking from a purely constitutional perspective, the supreme court is also the branch that has abused its power the least imho. Congress routinely enacts laws that are only constitutional if justified by the "general welfare" clause of the preamble, not any part of the actual constitution. The president can send troops anywhere to fight that he wants without a declaration of war, and this president has outright ignored several parts of the constitution.

    So, while I am a strong believer that the supreme court has had its share of overreaching rulings that weren't strictly constitutional, I think that pales in comparison to the abuses that the other branches have managed to pull off.
  • by Stanistani (808333) on Tuesday February 19, 2008 @06:58PM (#22481642) Homepage Journal
    Those boxes you use to defend your freedom, we've already failed on soap, ballot, and jury.

    Damn, and I'm out of practice on the last one.
  • Before the Law (Score:5, Interesting)

    by paulthomas (685756) on Tuesday February 19, 2008 @06:59PM (#22481660) Journal
    Recommended reading: Kafka's Before The Law Between this and secret laws for security checkpoints at airports, Kafka's absurd vignette is looking looking unsettlingly normal.
  • Only 95% onerous (Score:4, Interesting)

    by Dachannien (617929) on Tuesday February 19, 2008 @07:00PM (#22481678)
    When it comes down to it, this ruling (and the ruling of the lower court) isn't 100% onerous, because a US citizen who is tried using evidence obtained in this manner would finally have standing to contest the government's actions. In such a case, if (or, should I say, when) the government's wiretapping is found to be illegal, the evidence would be suppressed, and if the government's case was otherwise weak, the charges could be dismissed. If a person isn't practically affected in their ability to conduct legal day-to-day activities, then it's a reasonable conclusion (whether or not it's a correct one) that they were not damaged and therefore have no standing to sue.

    Of course, it's still 95% onerous, because there are still people reviewing the wiretap data (recordings, records, etc.) and those people are privy to otherwise private conversations.

  • by grahamd0 (1129971) on Tuesday February 19, 2008 @07:04PM (#22481740)

    That hand doesn't feed them. They serve for life. The president has no political power over sitting justices. They ARE loyal cronies, but that won't change with administrations.

  • by DaHat (247651) on Tuesday February 19, 2008 @07:08PM (#22481804) Homepage
    > the supreme court is also the branch that has abused its power the least

    Really? You should double check the Constitution with regards to the enumerated powers (you know, what the 10th amendment discusses) of SCOTUS... in fact they are the ones (not the constitution) that declared themselves the supreme arbiter of the constitution (see Marbury v. Madison).

    Technically speaking... the scope of power SCOTUS has is in of itself unconstitutional... problem is that as things have evolved... in order to change things back... we'd either need a SCOTUS ruling (of them giving up their power) or a constitutional amendment... which could still in theory be ignored by them (see cases of how they have ignored the 10th amendment).
  • by rpillala (583965) on Tuesday February 19, 2008 @07:19PM (#22481920)

    In Free Lunch [npr.org], David Cay Johnston notes a trend in limiting access to the courts. In this way, If someone somewhere doesn't want a case to be heard, they just have to buy a little influence and can claim a legitimate victory. Note the reason the courts dismissed ACLU's earlier efforts in this line: only persons under surveillance have standing to sue, and the nature of the program is such that you're not allowed to know that you're under surveillance. That is, if you can prove that you have standing, you can be imprisoned. If you can prove that someone else has standing, you can be imprisoned.

    In the book, Johnston details one case of a couple who owned an auto repair business in a spot where (I think) Jeep wanted green space for its factory complex. You can guess whose complaint was thrown out. These days it seems like there are only checks and balances when they're backed up by personal relationships or bullying. Note the number of subpoenas the white house has simply ignored.

  • Re:Only 95% onerous (Score:1, Interesting)

    by Anonymous Coward on Tuesday February 19, 2008 @07:20PM (#22481928)
    Assuming, of course that the matter ever came before a public court. Depending how paranoid you are feeling, any of the following could occur:

    1. The evidence could be presented before a closed court, with the record sealed. The judge and/or defense may ignore the scource of the evidence.
    2. The evidence could be presented in more of a "tribunal" setting.
    3. The "accused" could just be shipped off to Guantanamo or some secret prison in Europe for "questioning".

    Frankly, all of these are believable, given news in the last few years.
  • Not quite (Score:3, Interesting)

    by el_munkie (145510) on Tuesday February 19, 2008 @07:21PM (#22481950)
    ...did you expect these shrewd men and women to bite the very hand that feeds them?

    The whole point of the lifetime appointment of judges to the Supreme Court is that they wouldn't have to be beholden to whichever powers appointed them. Scalia, Alito, and Thomas could have a change of heart and become flag-burning, dope-smoking, abortion-promoting hippies, and there's really nothing that could be done to punish them. I think they can be impeached by Congress, but that isn't really common.
  • by ptbarnett (159784) on Tuesday February 19, 2008 @07:42PM (#22482232)

    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.

    This particular legal doctrine has nothing to do with the Bush administration. Despite the Catch-22 of "lack of standing", it's used quite often. Courts have been avoiding Second Amendment challenges for decades, using the same rationale.

    A writ of certiorari requires only four votes among the nine Supreme Court justices. Four justices: Stevens, Souter, Ginsburg and Breyer, are generally thought of as the Court's liberal wing. If they felt strongly about this case, they could have voted to do so.

  • by Chris Burke (6130) on Tuesday February 19, 2008 @07:56PM (#22482394) Homepage
    Really? You should double check the Constitution with regards to the enumerated powers (you know, what the 10th amendment discusses) of SCOTUS... in fact they are the ones (not the constitution) that declared themselves the supreme arbiter of the constitution (see Marbury v. Madison).

    How you figure? The Constitution itself states that the Judicial branch shall have jurisdiction over all cases arising under the Law of the U.S. and the Constitution. Marbury v Madison was just a case where a Law passed by Congress conflicted with the Constitution -- and again, it is clear from the Constitution that in such a case, the Constitution wins. That case may have formalized the notion of "Judicial Review", but the principle itself is quite Constitutional.

    Oh and by the way, the statute which the Court ruled in Marbury v Madison to be Unconstitutional was one which increased the Court's power. It's kind of hard to call this a power grab when the executed their Constitutional power to judge a case under the law in order to reject an Unconstitutional increase in power.

    see cases of how they have ignored the 10th amendment

    True enough, everyone pretty much ignores the 9th and 10th. But it's worth pointing out that they ignore this ammendment by not finding a law passed by Congress to be in conflict with the 10th, and thus Unconstitutional. How exactly would they do this if not via Judicial Review as established via Marbury v Madison?

    In other words this is a case of the Judicial Branch abusing their powers by under-utilizing them, resulting in an increase in power of the other two branches.
  • by Money for Nothin' (754763) on Tuesday February 19, 2008 @08:19PM (#22482610)

    Congress routinely enacts laws that are only constitutional if justified by the "general welfare" clause of the preamble, not any part of the actual constitution.

    Note, of course, that the "general welfare" clause was not intended to permit unrestrained growth of government services for whatever vaguely-collective reason Congresspeople might concoct in the service's defense. The "general welfare" clause was not intended to permit galloping socialism.

    At least, that's true according to James Madison in Federalist 41. [wikipedia.org] Alexander Hamilton, OTOH, took the broader view that Congress may spend as it sees fit, so long as it doesn't favor a particular party.

    Of course, even according to Hamilton's relatively-leftist, pro-government position, expenses to pay for, say, private military contractors, farm subsidies (which mostly go to the largest 20% of farms, often owned by e.g. Tyson Foods), welfare checks for the poor, (benefiting a subset of the population is not necessarily a benefit to the whole population. This doesn't make welfare a bad idea (though its implementations thus-far have ranged from moderately-useful at best (e.g. the EITC), and idiotic at worst) - merely, it conflicts with the way the U.S. Constitution both stands and as was intended by its authors), etc. would, I suspect, be invalid reasons for government spending.

    Luckily for American Congresspeople, the majority of the American public has neither read the Constitution or Bill of Rights, nor has been asked to think hard about those documents -- we can thank the public education that the Dept. of Education tries to manage -- and the 20% or so who might have given them more than a passing thought tend neither to abide by those documents nor care about their intent. Combined with incentives to ignore the meaning of the highest law of the land, Congresspeople thus trample the documents they are supposed to uphold...
  • Re:In other words (Score:5, Interesting)

    by jmauro (32523) on Tuesday February 19, 2008 @08:35PM (#22482792)
    Nope, the pot stamp laws are still on the books and enforced in many states. It's easier to prosecute someone for tax evasion then pot dealing so they're kept around. The drug scheduling was developed to harminoze and simplify the laws on the books at the time of passage, not due to any overturned laws by the Supreme court.
  • by sigmabody (1099541) on Tuesday February 19, 2008 @08:37PM (#22482820)
    There's a pretty simple way out of the catch, although it would be hard to do and potentially open pandora's box: have Congress pass a law which allows legal challenges to the Constitutionality of laws and actions without having to show actual damages. The only reason it's a problem now is because of the technicalities of the laws, which could easily be remedied.

    On the other hand, good luck in getting Congress to do something as blatantly beneficial for the country as that...
  • by Chris Burke (6130) on Tuesday February 19, 2008 @08:53PM (#22482974) Homepage
    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...

    Last I checked they still have plenty of friends in the oil industry, and may want extremely cushy and well paying jobs in a ridiculously profitable industry after they're done running the country. Of course Cheney's Halliburton stock option sales all go to charity, so there's no direct personal conflict of interest. Thus there's no motivation whatsoever and all those no-bid contracts were perfectly fair? Yeah right, making huge bank for all their oil and defense contractor friends is a huge motivation, and one they themselves will ultimately reap the benefit from.

    How much you want to bet Cheney ends up back on the Board of Directors for any number of companies who directly profited from the war in Iraq?


    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.


    Uh yeah I'm pretty sure "Middle East insecurity" has a major impact on the futures market, what with the whole thing being speculation on the future (both near and long term) supply, and Middle East sources still being a huge portion of that supply. Prices jumped hugely after 9/11, again after the invasion of Iraq. Yes there has been an otherwise oscillating but upward trend due to general increasing consumption and lessening of reserves, and yes the market is much larger than just Iraq. To conclude that therefore nothing Bush or Cheney has done has affected the price of oil is completely illogical.
  • by servognome (738846) on Tuesday February 19, 2008 @09:03PM (#22483062)

    Oh and by the way, the statute which the Court ruled in Marbury v Madison to be Unconstitutional was one which increased the Court's power. It's kind of hard to call this a power grab when the executed their Constitutional power to judge a case under the law in order to reject an Unconstitutional increase in power.
    Like most other power grabs, it was done in an covert manner. By rejecting the law, the Court appointed itself ultimate arbitor of Constitutionality which is not an expressly enumerated power. It's just like the Interstate Commerce Clause and "take care that the laws be faithfully executed," powergrabs by the legislative & executive branches, not specifically stated but arguably in keeping with the spirit of the Constitution.

    In other words this is a case of the Judicial Branch abusing their powers by under-utilizing them, resulting in an increase in power of the other two branches.
    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?
  • by moderatorrater (1095745) on Tuesday February 19, 2008 @09:14PM (#22483170)
    Voice recognition software coupled with intelligent filtering can easily bring that number down to 1% or lower. Besides, the USSR did a pretty good chance of spying on everyone all the time. Set up a website where people can download snippets of audio and flag it as suspected terrorist; if it is, they get $40! Make it so that too many false positives disqualifies them in the future, do some redundancy, and you've got yourself a system where you can easily get 10% of the population involved in spying on each other.

    Isn't technology great?
  • by susano_otter (123650) on Tuesday February 19, 2008 @10:40PM (#22483794) Homepage
    Well, technically the President does have broad powers to wage war as he sees fit.

    What gets me about Slashdot is that it's full of people who have a giant fucking hardon for the Internet and "information wants to be free" and how all this technology changes everything and shifts paradigms and makes collaboration easier and technology transfer faster and all that good stuff, but are willfully ignorant about the major changes to the nature and scope of warfare and the battlefields on which it will be fought.

    You can't have an Information Age without Information Warfare. You can't run around celebrating how the Internet makes borders obsolete without acknowledging that BORDERS ARE FUCKING OBSOLETE. You have a web-enabled cell phone? Congratulations! You're now a citizen of the world! And that means you enter the battlefield every time you make a call. Get used to it. It's the price you pay for Youtube and Blogger and Google and Wikipedia and Skype and Slashdot and Pirate Bay and all the rest of it. From here on, every smarty man and clever monkey is going to be waging war in your playground, and you whining about how they should all go back to 1950 and leave 2008 to you isn't going to make any difference at all.
  • by causality (777677) on Tuesday February 19, 2008 @11:57PM (#22484258)
    You really believe that they are, in fact, two separate parties who want to compete with each other? Why do you believe that? Because they claim to be? To quote Bill Hicks:

    "They're all the same! I'll show you politics in America; here it is right here."

    "I think the puppet on the right shares my beliefs."

    "I think the puppet on the Left is more to my liking.... hey, wait a minute, there's one guy holdin' up both puppets!"

    "SHUT UP! Go back to bed, America, your government is in control. Here's 'Love Connection', watch this and get fat and stupid."

    Pay attention and what you'll find is that the kinds of issues on which Democrats and Republicans oppose each other have a common property. Note, this is different from the tactic of finding a different method to get the same result but justfied by a different reason. The common thread is that none of the solutions proposed by either party have the effect of significantly altering the balance of power between the people and the government. So, you have the appearance (real or otherwise) of a constant fluctuation in the balance of power between Democrats and Republicans and it seems very effective at distracting from the steady trend of shifting power towards the government. When a duopoly controls a market, they can corrupt, manipulate and effectively control that market to the detriment of everyone else. Why do we have this silly idea that a duopoly controlling political power is somehow less prone to using these tactics than a duopoly controlling money alone?

    What I used to say is that you can vote for a Republican and they will expand the size and power of government at the expense of personal liberty or you could vote for a Democrat and they will expand the size and power of government at the expense economic liberty. Or I would say that you could vote Republican to expand government in the name of the stock market and economic freedom, or you could vote Democrat to expand government in the name of saving the poor people and the environment. Over time the given reasons change, of course; now it's Iraq etc. but there will always be an $ISSUE_OF_THE_DAY that can fit this formula. The result is that if what you want is less government size and less government authority, you're effectively disenfranchised. If I really wanted to live in an eventual police state, I would consider this a work of genius.
  • Re:In other words (Score:2, Interesting)

    by Mr. Slippery (47854) <(tms) (at) (infamous.net)> on Wednesday February 20, 2008 @03:07AM (#22485082) Homepage

    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.

    The government thinking it can tell you what you may or may not do with your own body is much more of a problem than mere eavesdropping.

    The sovereignty of the state ends at my skin. If that's not understood, all else is moot.

  • by ShedPlant (1041034) on Wednesday February 20, 2008 @07:55AM (#22486442) Homepage
    The President does [i]not[/i] have the power to wage war. Presidents have usurped this power from Congress since 1945.
    Information wants to be free? Yes it does. But what does that matter when We The People aren't free from arbitrary exercise of power by our own government?
    The USA has become the Evil Empire it fought in 1776. Worse, perhaps.

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