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Court Nixes National Security Letter Gag Provision 128

Posted by kdawson
from the speak-we-will dept.
2phar sends news that on Monday a federal appeals court ruled unconstitutional the gag provision of the Patriot Act's National Security Letters. Until the ruling, recipients of NSLs were legally forbidden from speaking out. "The appeals court invalidated parts of the statute that wrongly placed the burden on NSL recipients to initiate judicial review of gag orders, holding that the government has the burden to go to court and justify silencing NSL recipients. The appeals court also invalidated parts of the statute that narrowly limited judicial review of the gag orders — provisions that required the courts to treat the government's claims about the need for secrecy as conclusive and required the courts to defer entirely to the executive branch." Update: 12/16 22:26 GMT by KD : Julian Sanchez, Washington Editor for Ars Technica, sent this cautionary note: "Both the item on yesterday's National Security Letter ruling and the RawStory article to which it links are somewhat misleading. It remains the case that ISPs served with an NSL are forbidden from speaking out; the difference is that under the ruling it will be somewhat easier for the ISPs to challenge that gag order, and the government will have to do a little bit more to persuade a court to maintain the gag when it is challenged. But despite what the ACLU's press releases imply, this is really not a 'victory' for them, or at least only a very minor one. Relative to the decision the government was appealing, it would make at least as much sense to call it a victory for the government. The lower court had struck down the NSL provisions of the PATRIOT Act entirely. This ruling left both the NSL statute and the gag order in place, but made oversight slightly stricter. If you look back at the hearings from this summer, you'll see that most of the new ruling involves the court making all the minor adjustments that the government had urged them to make, and which the ACLU had urged them to reject as inadequate."
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Court Nixes National Security Letter Gag Provision

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  • Wow... (Score:5, Insightful)

    by Darundal (891860) on Tuesday December 16, 2008 @04:30PM (#26137007) Journal
    ...this is one of the few steps that has been taken in a long time that makes me feel the whole "land of the free" thing.
  • by Anonymous Coward
    Court Nixons National Security Letter Gang Protection?
  • no kidding. (Score:5, Informative)

    by SinShiva (1429617) <slashdot@drowzy.net> on Tuesday December 16, 2008 @04:34PM (#26137071)
    "We are gratified that the appeals court found that the FBI cannot silence people with complete disregard for the First Amendment simply by saying the words 'national security,'" said Melissa Goodman
    • Re:no kidding. (Score:5, Insightful)

      by zappepcs (820751) on Tuesday December 16, 2008 @04:37PM (#26137125) Journal

      Now, 250 million Americans should be writing to the Obama organization and asking why the fuck it was allowed in the first place and what is HE going to do about it... in the next 12 months, not how will he leave it to the next election.

      • Re: (Score:2, Interesting)

        by SinShiva (1429617)

        Obama voted to reauthorize the USA PATRIOT Act, which extended the Act, but with some amendments. Such amendments would clarify the rights of an individual who has received FISA orders to challenge nondisclosure requirements and to refuse disclosure of the name of their attorney.

        He voted against extending the USA PATRIOT Actâ(TM)s Wiretap Provision on March 1, 2006. This bill would give the FBI the authority to conduct âoeroving wiretapsâ and access to business records. Voting against this bill would prolong the debate, keeping the USA PATRIOT Act provisional whereas voting for this bill would extend the USA PATRIOT Act as permanent.

        hmm. Wikipedia [wikipedia.org]

        • Re:no kidding. (Score:5, Insightful)

          by zappepcs (820751) on Tuesday December 16, 2008 @05:01PM (#26137461) Journal

          Yes, as a junior senator, voting is something you can do about not letting it get worse. He's president elect now and has the ear of everyone in the beltway and the world.... so.... what is he going to DO about it? He can't vote against it anymore in the Senate. Where will his veto votes be spent? It's a nice history, that, but what is his plan to fix the problems. So many promises are broken on the day after inauguration. What is Mr Obama's plan going forward?

          • by SinShiva (1429617)
            you are right about that. obama is a people pleaser, it's likely he will seek out a compromise nullifying the extremities of the patriot act, while still keeping it useful under certain conditions in the event of an actual terrorist plot. i'll be curious as to how he goes about achieving that goal, though
        • Re: (Score:1, Troll)

          by bigstrat2003 (1058574) *

          So, in other words, he'll do nothing. As anyone who's been paying attention to him would know by now. He not only voted to extend the patriot act, but he voted for the FISA amendments.

          Obama's position on civil liberties is clear. He doesn't believe in them any more than Bush did. Hopefully the other branches of our government can keep him from running rampant, or else we are well and truly fucked.

          • Re:no kidding. (Score:5, Insightful)

            by icebrain (944107) on Tuesday December 16, 2008 @05:46PM (#26138049)

            Obama's position on civil liberties is clear. He doesn't believe in them any more than Bush did.

            His positions on liberties and freedoms are like those of most politicians. They all promote freedom to do "harmless" stuff, because it's not a threat to them or their power. But it's very rare to find one who promotes the "dangerous" ones. Being able to speak freely about and criticize the government (and call them on it when they screw up), habeas corpus, keeping and bearing arms, the right to privacy (both physical searches and observation)... those are ones that keep the government from exercising absolute control. There's a reason those things are the first things mentioned in the bill of rights, and in very clear terms; they knew the government would sooner or later try to restrict that.

          • I doubt Mccain cares about our rights any more then obama does, so its a lose-lose situation
            • Re: (Score:2, Flamebait)

              by bigstrat2003 (1058574) *
              Of course it was lose-lose. I never said McCain was a better choice. What's been lost on most people this entire election season is that both candidates were bad for us. Getting into an argument of who was less bad was missing the fundamental problem. The problem is, American voters tend to be idiots, and are so damned partisan about things that they thing the worst possible thing is for the other guy to win - even though he won't make much of a difference. You need to think long-term, and realize that if y
              • So how would the american voters make anything better?
                • Re: (Score:3, Insightful)

                  by bigstrat2003 (1058574) *

                  Well, people aren't willing to give up their partisan attitude, so, the most viable option is probably to implement a preferential voting system so that people can vote for who they really want, while not screwing over their "safe" choice (of course, the scary possibility that people actually think these assholes are the best for the job exists, but I'm hoping that's not the case). The preferred option is for people to actually look at more than just two candidates and call it a day. Now, surely many third-

                • change the voting system. PR works much better anyway.

                • All you have to do is read the freaking ballot. There's one or two people on there who actually care about your rights. Talk about voting for change, sheesh.

              • It wasn't lost on me. I voted green party mostly because my finger just wouldn't touch Obama's name....

  • Since it was the U.S. Court of Appeals for the Second Circuit, does this ruling only apply in New York, Vermont, and Connecticut?
    • by Blindman (36862) on Tuesday December 16, 2008 @05:01PM (#26137451) Journal

      Technically speaking, yes. However, any circuit court or district court (in another circuit) will either follow this decision or explain why this decision is wrong. This ruling does make a contrary result in another circuit somewhat less likely.

      • Re: (Score:1, Offtopic)

        by skarphace (812333)

        Technically speaking, yes. However, any circuit court or district court (in another circuit) will either follow this decision or explain why this decision is wrong. This ruling does make a contrary result in another circuit somewhat less likely.

        Please cite this. It's a U.S. Federal court. It's rulings should apply to the whole of the country. From what I know, they only separate into districts for managing caseload. Hence in the northwest, one court spans a whole crapload of states and the northeast is much smaller.

      • Even more importantly, when a federal circuit court opines on the constitutionality of a federal statute, it will result in mass filings of "identical" lawsuits in other circuits by similarly situated plaintiffs (especially when the ACLU is involved). Since the constitution grants us an appeal of right to the federal circuit court of appeals in these matters, these other circuits will become bombarded with requests to reach a decision and have little choice but to rule.
        Lastly, and most significantly, if a
  • great news (Score:5, Insightful)

    by Anonymous Coward on Tuesday December 16, 2008 @04:46PM (#26137257)

    Well, congratulations America.
    It is very nice to see a resurgence of freedom in your country.

    The question/task for the future is to figure out how to prevent this sort of abuse from happening again.
    It has been somewhat disturbing to see how easily your executive can disregard your highest laws with impunity only to have their actions repealed years later.

    I mean, it is nice to have a constitution that declares things like a right to free speech and habeus corpus (or however that is spelled) but if the government can break that law for years without any legal sanction then is it anything but an empty statement of principles?

    George Bush has proven that the American constitution has no teeth.
    If an American president decides to break the law (any law) they cannot be stopped or punished in any way. The most that can happen is that they will be asked to stop... usually long after they have finished anyway.

    Short of kidnapping white women is there anything your president cannot do? will your police forces EVER do anything to stop a president from breaking a law?
    The answer seems to be no.

    • Re:great news (Score:5, Interesting)

      by adrenaline_junky (243428) on Tuesday December 16, 2008 @05:08PM (#26137539)

      The President swears to uphold the Constitution, but what if he chooses not to?

      As you point out, the worst that happens is the court eventually overrules, but often the damage has already been done and the President can just try again in a slightly modified way.

      Is such disregard for the Constitution treason?

      At the very least it is an impeachable offense, but only if congress has the will to impeach.

      • Re:great news (Score:5, Insightful)

        by johnsonav (1098915) on Tuesday December 16, 2008 @05:37PM (#26137937) Journal

        The President swears to uphold the Constitution, but what if he chooses not to?

        He's impeached, or his actions are ruled unconstitutional, as in this case. What do you want, a coup? Sadly, these kinds of decisions are too important to undertake quickly.

        As you point out, the worst that happens is the court eventually overrules, but often the damage has already been done and the President can just try again in a slightly modified way.

        But what remains is a more fleshed out interpretation of the constitution. After this case, these actions are explicitly unconstitutional. It should be harder for the congress and president to overreach. But you're right, you can't undo the damage. But impeachment could stop him from trying again.

        At the very least it is an impeachable offense, but only if congress has the will to impeach.

        Impeachment isn't supposed to be easy. How else do you minimize the chances the impeachment isn't politically driven, but to make it hard enough that a consensus is reached on both sides of the aisle.

        • Re:great news (Score:4, Insightful)

          by The Spoonman (634311) on Tuesday December 16, 2008 @05:51PM (#26138101) Homepage
          But what remains is a more fleshed out interpretation of the constitution. After this case, these actions are explicitly unconstitutional.

          Which makes me wonder if perhaps there's not a subtle flaw in the system? Under the current system, Congress creates and ratifies bills and then the President gives his approval and signs them into laws. In cases such as the PATRIOT Act with significant non-Constitutional provisions, it can take years before the law is tried in court, during which time hundreds, thousands or millions of people could be affected negatively by a law that's later struck down.

          The simple solution, IMO, is to have a bill make a quick side trip to the SCOTUS before going on to the President. Glaringly unconstitutional items could be stripped out well in advance of them causing any problems. It means all three branches have a say in the creation of the laws, as opposed to two doing so and the third being left to clean up the mess.
          • The simple solution, IMO, is to have a bill make a quick side trip to the SCOTUS before going on to the President. Glaringly unconstitutional items could be stripped out well in advance of them causing any problems. It means all three branches have a say in the creation of the laws, as opposed to two doing so and the third being left to clean up the mess.

            The constitution would have to be changed to allow advisory opinions. But I don't think that would be a good idea. Making the court a player in the crafting of legislation, would jeopardize the court's apolitical standing, and erode congresses legislative prerogative.

            But, most importantly, the Supreme Court usually takes cases which have been argued and ruled on at the lower levels. They have the insight of well-reasoned and persuasive arguments from both sides of an issue. Those nine justices are able to d

            • by mnkyby (1380587)

              i agree we shouldn't make the court part of the crafting of legislation, but what if SCOTUS had the ability to determine if a law is constitutional or not at any time, instead of making them wait until an individual brings a case against the law? for example, a good deal of the patriot act is unconstitutional(IMO), but SCOTUS hasn't heard any cases (that i'm aware of) against it. why should they have to wait for a harmed individual to bring suit? in many cases it might be difficult or even impossible for

          • Re:great news (Score:4, Insightful)

            by John Bayko (632961) on Wednesday December 17, 2008 @01:05PM (#26147339)

            The simple solution, IMO, is to have a bill make a quick side trip to the SCOTUS before going on to the President. Glaringly unconstitutional items could be stripped out well in advance of them causing any problems. It means all three branches have a say in the creation of the laws, as opposed to two doing so and the third being left to clean up the mess.

            This is actually the role an appointed senate is supposed to have. Basically, elected legislators are usually amateurs, and partisan. Appointed-for-life (or at least longer terms than elected legislators) senators have the luxury of building up experience of what things are most likely legal, as well as identifying unintended consequences of badly written legislation. Plus they no longer have to pander for re-election to the masses who may be emotional, uninformed, or inattentive, so the senators can point out flaws in the intent of legislation as well. Basically, they act as editors, ensuring that the lower house legislation actually does what it is intended to.

            Unfortunately, in many countries that is seen as undemocratic.

        • Re: (Score:2, Interesting)

          by Valdrax (32670)

          Impeachment isn't supposed to be easy. How else do you minimize the chances the impeachment isn't politically driven, but to make it hard enough that a consensus is reached on both sides of the aisle.

          Golf clap for theory, but let's face it, the only times articles of impeachment have ever been voted on in Congress have all been for political reasons and not for actual Constitutional violations.

          Andrew Johnson was impeached for a violation of the Tenure of Office Act (which was passed over his veto) which required Senate approval for the sacking of any executive officer -- including the Secretary of War. (Modern Supreme Court jurisprudence would not allow such restrictions on cabinet level positions dire

          • Golf clap for theory, but let's face it, the only times articles of impeachment have ever been voted on in Congress have all been for political reasons and not for actual Constitutional violations.

            But neither of the impeachments in our history have lead to a conviction by the Senate. I think that only reinforces my point.

            Impeachment cannot happen without an opposing party in majority control and with enough spine to stand up unless the President does something REALLY egregious. Otherwise, if he's just pushing the borders of executive power, as long as he does it in a way that his party likes, then impeachment cannot be triggered.

            I think the obvious counter-example is Nixon. I'm pretty sure he would have been impeached (had he not resigned first), even if the congress had been Republican. And if anyone deserved it, he did.

            I only want the congress to act if the president has done something really egregious. The other checks and balances in our system, judicial review and congresses power of the purse strings,

    • by KeithJM (1024071)

      George Bush has proven that the American constitution has no teeth. If an American president decides to break the law (any law) they cannot be stopped or punished in any way. The most that can happen is that they will be asked to stop... usually long after they have finished anyway.

      You could argue that slavery, the internment of Americans of Japanese descent and the US Government's treaties with Native American tribes already made that point. The real thing it implies though is that (except for the Native Americans, I guess) it eventually works. We'll have to wait to see how Guantanamo and the warrant-free wiretapping work out to say for sure. Of course a president can overreach his power. It isn't practical for the Supreme Court to monitor every word that comes out of his mouth.

    • Re:great news (Score:5, Interesting)

      by johnsonav (1098915) on Tuesday December 16, 2008 @05:20PM (#26137671) Journal

      The question/task for the future is to figure out how to prevent this sort of abuse from happening again. It has been somewhat disturbing to see how easily your executive can disregard your highest laws with impunity only to have their actions repealed years later.

      Actually, this is how we prevent it from happening again. And, to be fair, it wasn't the executive abusing power. He was given it by the congress.

      Congress passes all kinds of laws which are later found to be unconstitutional by the court. The ultimate check, in our system, on the congress and president is the judiciary. How would you do it?

      George Bush has proven that the American constitution has no teeth.

      This case is an example of those teeth. Is it as timely as I would like? No. But I would rather have the correct decision after a well reasoned and thought out case, than a quick gut reflex (which is the role the congress usually plays). Assuming this decision is upheld on appeal, its now basically part of the constitution. I don't want that to be too easy or quick.

      • Re:great news (Score:4, Insightful)

        by vux984 (928602) on Tuesday December 16, 2008 @05:35PM (#26137909)

        Congress passes all kinds of laws which are later found to be unconstitutional by the court. The ultimate check, in our system, on the congress and president is the judiciary. How would you do it?

        By making there be consequences for passing an unconstitutional law, for starters.

        They swear to uphold the constitution and then introduce an unconstitutional law... there should be real consequences for this. You know, to give them an incentive not to do it.

        I'm not suggesting making it a criminal offense or sending them to federal 'pound me in the ass' prison or anything, but perhaps anyone that sponsors an unconstitutional bill should automatically be removed from congress. ie "fired" and is not eligible to run again, nor serve in any position in government higher than 'X'.

        But I would rather have the correct decision after a well reasoned and thought out case, than a quick gut reflex (which is the role the congress usually plays).

        If there were real consequences to introducing unconstitutional laws, maybe they'll think a little harder.

        • Re: (Score:3, Insightful)

          by johnsonav (1098915)

          By making there be consequences for passing an unconstitutional law, for starters.

          But who decides what's unconstitutional? The Supreme Court has explicitly reversed itself a number of times. I'm not saying its right that the congress passes laws without giving any thought to constitutionality. But, most of the time, there is not enough case law (or the case law is conflicting) to be sure what you are passing is constitutional or not. Even in this case, as outrageous as it seems, there were genuine constitutional questions which had never been directly addressed.

          I agree that congress has

          • Re:great news (Score:5, Insightful)

            by vux984 (928602) on Tuesday December 16, 2008 @06:40PM (#26138709)

            But who decides what's unconstitutional?

            The supreme court.

            The Supreme Court has explicitly reversed itself a number of times.

            I don't really see how that's an actual problem. Firstly, it really doesn't happen -that- often. Secondly, if the court rules against something, and a congressman loses his job, and then down the road the supreme court reverses itself... in the big scheme of things what was the harm?

            Remember, the congressman sponsored a law that he SHOULD have at least known had a good probability of being challenged in the supreme court, and a good estimation of how it would fare there, and he knew what the consequences were of it not passing. He made an INFORMED decision whether to gamble on it.

            Seriously, I can live with that.

            Besides, if anything, congress really shouldn't be passing laws that have even a reasonable CHANCE of being overturned in the supreme court. I don't really want laws that run "right up the line" either. If you are considering a bill and your lawyers and advisers are calculating it will probably be challenged, and that if challenged that 4 supreme justices will side with it, and 4 probably won't, and it will comes down to how Ginsberg is going to interpret the definition of X...then hey, maybe its not a very good law to gamble your career on! It probably should be reworked a bit so that it will sail through the supreme court.

            As a bonus we'd also have fewer supreme court reversals as fewer laws would be proposed that tried to squeak up against the line without crossing it. Congress would be motivated to give the constitution some "space", which is a good thing.

            To use a /. car analagy... if the legal limit on drunk driving is 0.08, and you know you lose your license if you get caught with that... well, you don't drink up to 0.079 and then hop into your car. You make damned sure you are comfortably away from blowing over. You don't want to blow 0.081 in a breathalyzer, and then squeak out of a DUI via a more precise blood test administered at the police station. Better to just keep yourself well below the legal limit and sail through.

            • Re:great news (Score:5, Insightful)

              by johnsonav (1098915) on Tuesday December 16, 2008 @06:51PM (#26138863) Journal

              I see you're point. But instead of enacting a law, with technicalities and loopholes, we, the voters, should be the ones removing the congressmen from office. The two (or six) years between elections is usually less time than it takes for a case to be appealed up to the Supreme Court. And it doesn't require a constitutional amendment that these congressmen would never vote for.

              If we, the citizens, want to protect the constitution, then we should step up and take responsibility for defending it from our politicians.

              • "If we, the citizens, want to protect the constitution, then we should step up and take responsibility for defending it from our politicians." --
                DAMN STRAIGHT.

                Had I mod points dear sir, you would be getting some. Now if we could just rustle up some people with balls over the next few elections, maybe we could keep ourselves out of the Communist States of America a bit longer.

                • by mnkyby (1380587)

                  i am much more fearful of a Fascist States of America than a Communist states of America at this point.

                  no, they're not the same. one's a economic system that attempts to restrict the exploitation of a group of citizens by another group of citizens, and the other's a system of government where the government has complete control over everything.

        • Re: (Score:3, Insightful)

          by Aaul (695153)

          One of the consequences, at least what is supposed to be a consequence, relies on the people. When our elected officials do stupid things like create unconstitutional bills it is our responsibility as citizens of the nation to take notice and use our only power: vote them out of office. Unfortunately there are not enough people who take that responsibility seriously these days. The people are part of the checks and balances just as much as the executive, judiciary, and legislative are.

          Note, I do realize

          • by vux984 (928602)

            One of the consequences, at least what is supposed to be a consequence, relies on the people. When our elected officials do stupid things like create unconstitutional bills it is our responsibility as citizens of the nation to take notice and use our only power: vote them out of office.

            And my point is we shouldn't have to. If they pass an unconstitutional law, it should be automatic, and permanent. Having the people have to take action to fire a politician who passed an unconstitutional law is absurd as hav

            • Re: (Score:3, Insightful)

              by johnsonav (1098915)

              If they pass an unconstitutional law, it should be automatic, and permanent. Having the people have to take action to fire a politician who passed an unconstitutional law is absurd as having the people launch grassroots campaigns to convict criminals.

              Who would you have do this, then? What new office or department would you create to fill this need? What checks would be on this new office's powers? Who removes them, if they violate the constitution? Are they elected or appointed? By who? Is it a political or non-partisan office? What standards will they use to judge the constitutionality of a law? If a section of a large law is found unconstitutional, but the rest passes muster, which congressmen should be held responsible, those who voted for it or thos

              • by vux984 (928602)

                Who would you have do this, then?

                Same group that would remove any elected official from office if he or she refused to step down after losing an election. I mean, we do have someone that does this right? Dick Cheney can't just decide to keep being Vice President indefinitely right? If he fails to voluntarily step down and vacate his office, there are people to ensure it still happens, right?

                What checks would be on this new office's powers? Who removes them, if they violate the constitution? Are they elected

                • Same group that would remove any elected official from office if he or she refused to step down after losing an election. I mean, we do have someone that does this right?

                  I thought you said there should be a law which would strip a legislator of his office if he sponsored a bill which was determined to be unconstitutional. Correct? Now, if we can find a way to agree that a law is unconstitutional (and I'm not conceding that point), who does the kicking-out?

                  The congress? Congress has the power to expel members with a two-thirds vote. But, given that the unconstitutional law was passed by a majority of congress, I think it would be hard to find 2/3 of them to expel the person

                  • by Reziac (43301) *

                    "You shouldn't think about that too much, because there's no one there to remove a president if he decides to stick around. Its kind of scary, really. At best, you could hope for a rouge [sic] general to take him out by force, but hopefully not overstay his welcome. Its kind of amazing that we've had so many orderly transitions of power, now that I think about it."

                    Whilst reading this thread, I had the exact same thought.. the President is in a position where he *could* go "Leave? Who's gonna make me??" and

                    • Re: (Score:3, Insightful)

                      by johnsonav (1098915)

                      I'm not sure there's a mechanism to forcibly eject such a person, nor what would happen even if there is.

                      There's no formal mechanism in place. So far, we have depended on the honor of the President to step down when his time comes. And its worked. But there are a number of informal safeguards in place that make it a really bad idea:

                      - Each member of the military swears an oath to the constitution, not the President. Hopefully, we could depend on them to stand by their word.
                      - Congress has the power to stop funding the illegitimate president.
                      - The states would shit a brick. The National Guard is under the governo

                    • by Reziac (43301) *

                      Observationally, we seem to have a fairly high standard of national ethics in our military (after all, they're in an even better position to stage a coup, were some whacked-out general so inclined) and that's a good point about the states, which would positively wig out.

                      But I doubt that vanity would prevent a would-be dictator -- if anything, history tends to indicate the reverse.

                      Otherwise... yeah, all good factors in our favour, but... Transition is still, at bottom, dependent on the goodwill of a short ch

                  • by ultranova (717540)

                    You shouldn't think about that too much, because there's no one there to remove a president if he decides to stick around. Its kind of scary, really. At best, you could hope for a rouge general to take him out by force, but hopefully not overstay his welcome.

                    At best you could hope that the people he tries giving orders to would realize that he doesn't have any official or lawful power anymore and refuse to obey. His successor would then call the cops/order the guards to throw him physically out of the Whit

        • By increasing the consequences, you decrease the likelihood that the courts will correct these problems. Can you imagine the complete circus that would have been erected if the outcome of this decision had a large negative effect on President Bush?

          As much as I hate the things that this administration has done; I do want the courts to be able to do their jobs and clean up the mess without being harassed. While judges have some protections against political retribution, they are not immune.
        • by Reziac (43301) *

          How about this: a very direct and immediate sanction, such as not allowing the offending congresscritter to introduce/sponsor legislation for the rest of the session, nor to vote on legislation for the rest of said session. (He gets another chance in the next session, under the theory that everyone should have an opportunity to see the error of their ways and improve their behaviour. If he screws up again... well, he loses his privileges again!)

          That would have the added effect of enraging his electorate (w

      • Re: (Score:2, Insightful)

        by Anonymous Coward

        Congress passes all kinds of laws which are later found to be unconstitutional by the court.

        That seems to be the heart of the problem.
        Congress knows (i presume) that laws they pass must be constitutional. In practice they do seem to pass a lot of laws that are not constitutional.
        In essence, the writing and passing of such a law is an error. The system of judicial review detects and corrects those errors after a delay of a few years.

        Would it not be possible to simply 'move up' the process of judicial review and perhaps make it mandatory and automatic?

        The damage that can be caused by an unconstitu

        • I do think that the concept of a disincentive of some sort would be good.

          We have it, but don't use it often enough. Its called, "voting those bastards out of office".

      • by mnkyby (1380587)
        this is assuming that congress had the right/power/authority to give him that power. eg, the president does not have the power to deny my right to habeus corpus or a a fair and speedy trial since Congress has passed no declaration of war. now it doesn't matter if congress, Cheny, or my mother gives/grants him the power/authority to do so. by the power of the constitution (the highest law in the land) those rights are guaranteed to me regardless of what anyone else does or says short of rewriting/reinterp
    • I'm pretty sure the police wouldn't stop the President even if they could.

      That whole "enforce the laws" part of the separation of powers could theoretically be extended to make the nation's police forces directly answerable to the President.

      Of course, then the President would have, essentially, a standing army stationed in the United States... which violates several more laws.

      • That whole "enforce the laws" part of the separation of powers could theoretically be extended to make the nation's police forces directly answerable to the President.

        The federal police (FBI, ATF, DEA, etc) are all answerable to the President. That's what executive means. That's a major part of the President's role in the separation of powers. The congress controls the purse strings, but the President is their boss.

        Look up Andrew Jackson's response to an unfavorable court ruling, "John Marshall has made his decision, now let him enforce it!" Its the executive branch's check on the power of the judiciary.

    • Ya, a handful of people of were unlawfully detained, and there were attempts to repress critical comments, but when the American people finally got sick of it they were allowed to change directions. The US Constitution doesn't stop us from electing idiots, crooks, or both. But it slows them down with the checks-and-balances scheme and allows the people to get a new government without violence.
      The Bush administration got away with far less than they attempted, and we've got the Constitution to thank for it

    • by mdmarkus (522132)
      George Bush has proven that the American constitution has no teeth.

      No, but it does have shoes.

    • First let me say that my country, the ol' U.S. of A. is far from perfect. Second, let me say as an anonymous coward, you fail to let us know your own country. The UK and Canada, two countries I admire, currently have their own issues they are dealing with. You could be posting from some third world country that believes that anything the US stands for is something you refuse to stand for and therefore you are anti-constitution. I don't know. But don't throw stones at our huge glass houses. And don't s

    • It well may be that George W is the first president prosecuted for High Crimes and Misdemeanors after leaving this office of President. At least, I hope so.
      I must take responsibility for my part in this travesty. I was angry and wished to unleash the dogs well supplied with cans of whoop-ass. I knew GW was a slime ball when I re-elected him but I wanted revenge (not retribution or justice) upon the fears in my mind. Now matters are worse.

      I am responsible for cleaning up this mess I helped create with my

  • by erroneus (253617) on Tuesday December 16, 2008 @05:02PM (#26137479) Homepage

    ...in my experience, very few people have no gag reflex. Therefore, I believe the requirement was unconstitutional and unnatural.

  • Will the courts or the dems un-gag her?

I never cheated an honest man, only rascals. They wanted something for nothing. I gave them nothing for something. -- Joseph "Yellow Kid" Weil

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