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DOJ To Claim National Security in NSA Case
Posted by
Zonk
on Sat Apr 29, 2006 04:54 AM
from the nice-idea-now-its-mine dept.
from the nice-idea-now-its-mine dept.
deblau writes "Wired is reporting that the federal government intends to invoke the rarely used 'State Secrets Privilege' in the Electronic Frontier Foundation's class action lawsuit against AT&T. The case alleges that the telecom collaborated with the NSA's secret spying on American citizens. The State Secrets Privilege lets the executive branch step into a civil lawsuit and have it dismissed if the case might reveal information that puts national security at risk."
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U.S. Government Intervenes in EFF vs. AT&T 463 comments
An anonymous reader writes "Reuters is reporting that the US government has 'filed a motion on Saturday to intervene and seek dismissal of a lawsuit by a civil liberties group against AT&T Inc. over a federal program to monitor U.S. communications.' More from the article: " In its motion seeking intervention, posted on the court's Web site, the government said the interests of the parties in the lawsuit "may well be in the disclosure of state secrets" in their effort to present their claims or defenses ... A hearing is scheduled for June 21 before federal Judge Vaughn Walker." You may recall a few weeks ago when the DOJ asked the judge to dismiss the case. They've now taken the next step required to quash this legal action.
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I think... (Score:5, Insightful)
Re:I think... (Score:3, Interesting)
Re:I think... (Score:5, Interesting)
Re:I think... (Score:5, Insightful)
That's not the problem. The NSA was built to spy on people who need spying on. The problem is, they, and the administration, are not following the laws set forthe to do so such spying (getting warrants, even after the fact). THAT is the problem here. They are breaking the law because they feel like it, and they believe they do not have to be accountable for doing so,
Re:I think... (Score:5, Informative)
They broke the law. There is no getting around that. You cannot spy on us citizens without a warrant. There is a system set up to get that warrant secretly, and "speedily". They chose to not get a warrant (or 10,000 warrants). It is that simple.
Using "national security" as a reason is not good enough. I think the supreme court already said this [cnn.com] Even if we had all of our communications monitored, that would not stop a terrorist who is determined to kill himself and take people with him. Giving up privacy will not help us stop the terrorists. Even if we imposed "martial law", as long as they have the determination, they would keep trying to kill themselves.
Look at Iraq now, we have how many hundreds of thousands of troops there, who have the authority to impose curfews, search without warrants, etc, and STILL there are many, many suicide bombings every month.
And, furthermore, since this is a war without a clear end, when will we know they are not monitoring our communications? Will they come out and say it, or will we just have to "take their word for it"? Sorry, that's not good enough. They have no credibility.
Re:I think... (Score:5, Interesting)
A. Vote in the upcoming election
B. Send a letter to their congressperson/senator
C. Donate $10-100 to the EFF or OTHER reputable HUMAN RIGHTS ORGANIZATION (don't have starbucks for 2 days and SEND MONEY.)
DO IT! DO IT! DO IT! If you don't, you're a piece of shit.
Agreed and furthermore (Score:4, Insightful)
This is part of a larger pattern, unfortunately. In defending this program, AG Gonzalez has stated that the AUMF of 2001 allows such a program because, in its words, it allows the president to take action against all "states, persons, or organizations that he determines" were involved in the 2001 attacks. Such an interpretation would essentially mean the official end of the American republic and the rise of an imperial military dictatorship. At the risk of invoking Godwin's law, this is not fundamentally different to *how* the Nazis took power after the Reichstag was burned. Our system is designed to protect against this exact danger.
The problem is not the spying per se. It is instead the way the program is run without adequate safeguards to the system of government of our democratic republic. I certainly hope that the court in this case does not give the Executive a free pass in this area. Allowing the State Secrets privilege to be invoked as a way to quash judicial oversight of such a program would be such a free pass.
All most of us are asking is for judicial oversight.
Re:I think... (Score:4, Insightful)
Did it ever cross yours that it should do it in the manner proscribed by the fourth amendment, which has worked great for the past 220 years?
"liberals hate the word 'Constitution' because they know that if the American public were to actually read and understand the Constitution, the liberal platform would literally crumble into dust."
Gosh, literally? I think you've been hitting that peace pipe a little yourself, hippie.
Re:I think... (Score:5, Insightful)
I won't belabor this point. The other replies have you nailed to the wall here. The issue is that if the government should be spying on certain people then the government damn well must do so within the confines established by the constitution and withing the the law. This administration has no respect for the constitution and beleives it is above the law, and the current story is about efforts to block the corts from looking at whether the current spying is being done within the law or being done illegally.
No, of course not, because people like you immediately think that everybody in the world is going to get along if we all smoke the peace pipe together.
Pardon me, but bullshit.
That is nothing but your own bias and imagination. Nothing but you setting up a straw man and pretending that your opponent is some demon that he is NOT.
I will lay strong odds that the person you are reffering to supported the war in Afghanistan, and I defy you to identify any meaningful percentage of "people like him" who opposed the war in Afghanistan.
Someone who (for example) opposes the war in Iraq and who absolutely despises the current administration, that person is NOT some anti-war coward anti-american hippy peacenik if they were also "pro-war" on Afghanistan.
And you automatically assume that the government is evil
Heay, that not too far off from the position of the Founding Fathers and teh very basis of our Constitution. That basis being that the government is made up of humans, and that humans are sometimes wrong or currupt, and that even good people sometimes abuse power and do Bad Things even with the best of intent, and that no branch of government should be trusted! That every branch of government and every peice of power withing the government must be subject to checks and balances and review by other parts of government. And this very case is about the judicial branch exercising it's Constitutional Power to review the legality of actions by the executive branch, and the executive branch desiring to exercize it's power independantly and without checks and without balances and without review. It's about the executive branch saying "Trust Us", we are doing Something Good, and we shouldn't have any pesky checks and balances looking over our shoulders making sure that we respect the Constitution and that we obey the law.
I'm sorry, but NO. The very basis of the Constitution is that no part of government should be trusted to police itself. The single most important time NOT to trust some part of government is when they make the very claim "Trust Us" and attempt to evade review.
and that conservatives eat little African babies for a snack before dinner.
Oooo! How recursive! A strawman of a straw man!
Come on, there is no vast neo-con conspiracy going on.
Well, I don't know exactly how "vast" it is, and maybe "conspiracy" is a bit grandiose, but many of the top positions of government are in fact held by self-professed neo-con,s and those self-professed neo-cons do self admittedly work and plan (aka 'conspire') with each other in furtherance of neo-con goals and policies.
So while you might quibble that the language was loaded, you cannot dispute the fact that there is a very distinct group with a distinct non-mainstream philosophy working and planing with each other ('conspiring') for that distinct agenda.
And don't even pretend to equate neo-con and conservative. There are a very large number conservatives becoming increasingly vocal of increasingly vocal in distancing "True Conservatives" from the policies and agenda of "Neo-Con".
The current administration has an approval rating of 32%. You don't hit an abysmal number like 32% without seriously screwing up and pissing off a substantion percentage of even your own party loyalists. Ev
Bingo (Score:3, Insightful)
Re:EFF Loss = New Precedents against our Civil Rig (Score:4, Informative)
This is by no means a new legal theory. The State Secrets Privilege was first recognised by a judge in United States v. Reynolds, 1953 [findlaw.com], and he drew on existing English case law to make that judgement. The precedent was set over fifty years ago, it's hardly being set by the EFF.
Re:EFF Loss = New Precedents against our Civil Rig (Score:5, Insightful)
The EFF case is entirely different. The government claims that Executive Privilege is a higher power than the 4th Amendment in the Bill of Rights. And the EFF, in the process of losing their lawsuit, will permanently erode the 4th Amendment, and place the Executive Branch beyond the reach of the courts.
Re:EFF Loss = New Precedents against our Civil Rig (Score:5, Interesting)
Whether or not the executive branch believes it can ignore the Fourth Amendment is beside the point. The State Secrets Privilege is all about dismissing lawsuits before they even get to a point at which such a thing can be discovered.
This can be used to cover up abuses of power, but that doesn't mean precedents can be set making the abuses of power legal. That doesn't make sense. To set such a precedent would mean that the lawsuit wasn't dismissed but went ahead anyway.
Re:EFF Loss = New Precedents against our Civil Rig (Score:5, Insightful)
Either they go ahead with the prosecution and risk creating this precedent that you fear. Or, they do not, and the government gets away with it.
Either way, with no consequences to their actions, the government is (or might as well be) above the law. At least with the EFF trying to prosecute, they
a) have a chance of doing something about it
b) bring it to people's attention
c) in the event of losing, sow the seed in people's minds that they *must* have been up to something in order to quash the case like that
Incidentally, you also mustn't forget that precedent is a guide, not an iron clad rule. Judges are free to rule differently; precedent just gives them something to use as guidance, and to point at in the event of their ruling being questioned.
Re:I think... (Score:4, Insightful)
Re:I think... (Score:4, Insightful)
If this were not a crime against the *people* of the US, I would not have a problem with this defense. But since it is, I think it is an issue that goes to the heart of *why* we even bother with a Constitution...
Re:I think... (Score:5, Insightful)
Do you really think the federal government has the political capital to spend right now going around and covering up wiretapping that they're NOT doing?
Absence of evidence (Score:5, Informative)
We have Mark Klein's written statement about tapping fiber at ATT facilities.
> THERE IS NO EVIDENCE
We have Russell Tice's testimony before the House Government Reform Subcommittee on National Security, Emerging Threats and International Relations
> THERE IS NO EVIDENCE
Attorney General Alberto Gonzalez has defended the program [pbs.org]
> THERE IS NO EVIDENCE
President Bush says he signed the order. [cnn.com]
> THERE IS NO EVIDENCE
Could you try using boldface? Somehow the all-caps hasn't been enough to convince me.
Re:I think... (Score:5, Insightful)
1) The trainer said they brought the elephant into your kitchen.
2) There are elephant droppings leading up to your kitchen.
3) The elephant has a huge interest in being in your kitchen.
4) For national security reasons, we will not let you into your kitchen, nor tell you anything about what's happening in your kitchen.
I'd be lead to believe there's a warm cup of coffee in your microwave. Oh no, it would indicate that there's an elephant in your kitchen.
No way! (Score:3, Funny)
Re:No way! (Score:5, Funny)
It ain't so
So they're doing it then? (Score:3, Interesting)
The NSA defense (Score:5, Funny)
"Case dismissed!"
But if ... (Score:4, Insightful)
If the Executive *did* use ATNT to spy on Americans then its illegal (no warrant) and legal protection doesn't apply to illegal acts.
Try it, the judge will bend over backwards to find a way to continue this case.
Re:But if ... (Score:5, Interesting)
Unless the Prisident is going to try to claim that he secretly declared martial law, there is no law in the land that will stop this from progressing. The best they can realistically hope for is a closed courtroom and sealed documents.
Re:But if ... (Score:4, Interesting)
"But the armed forces..."
Will be just as divided as the citizens are. During the last Civil War, the leadership of the Armed Forces divided almost evenly between the North and the South. I can name 5 generals who would not follow Mr. Bush, although they still might remain loyal.
Believe it or not, the moderate majority is beginning to get upset with our government. 70% of the nation now disagrees or is unsure of our leadership. Historically speaking, a President with less than 65% approval is considered ineffective. Mr. Bush is at 30%. Do you think the people don't see the unending corruption in the Legislature by big business and special interests? That they don't see the repeated illegal acts of the Executive and his officers, and his failure to lead the military effectively?
Principles of freedom (Score:5, Insightful)
Patriotism is standing up for liberty. Patriotism is battling against tyranny, even if that tyranny is home-grown. Patriotism is putting the rights of the people before the rights of the government, and before the rights of corporations.
Re:But if ... (Score:5, Interesting)
I mean just look at the people with flags on their houses. Try finding a single other country worldwide where people feel compelled to do something odd like that. The very concept of the US has been turned into a godlike entity. Hosting critical thoughts is akin to criticizing the prophet in an islamic country (although you won't be lapidated just yet
What's interesting though is that elsewhere the people that are adamant when you criticise the county, party, whatever, are those that are in power. The common people will more or less maintain appearances but in private will very clearly take the propaganda for what it is. In the US, it's the common people who hold no power that seem to be the most thourougly brainwashed.
This has always struck me as being both very odd and very unique. But then since don't visit very often and see things from a distance, I might get the wrong impression.
Re:But if ... (Score:5, Informative)
The US legal system is based on Rule of Law with precedence. That means previous court rulings on laws are considered the correct interpretation of laws, or, in this case, can effectively establish laws. Even constitutional ones.
From http://www.usconstitution.net/constnot.html#privac y [usconstitution.net] :
More:y
http://www.law.cornell.edu/wex/index.php/Privac
Re:But if ... (Score:5, Funny)
Hmm...
echo cats cats cats lions tiger ocelots | grep -i "feline"
It would appear that any feline aspect of that string is missing
I still don't see how state secrets applies (Score:5, Informative)
Re:I still don't see how state secrets applies (Score:5, Interesting)
Nixon did of course get smacked down for doing something that looks similar, but in that case the spying was strictly domestic. In spite of what everyone keeps saying about the current case, it is not domestic spying. One end of every communication intercepted is in another country, and the court that decided the Nixon case specifically noted that their ruling did not apply to international communications.
Re:I still don't see how state secrets applies (Score:5, Insightful)
Are you sure about that? The way I read the EFF case and the and the Wired writeup [wired.com], they are under the belief that ALL communications are being re-routed to the NSA. Not simply all calls which are going international.
If they are truly getting copies of every single AT&T communications, this would most especially NOT be limited to international communications -- it would, in fact, be large-scale domestic spying with no warrants or specific targets. Merely recording everything that goes on to see if they can sift out anything useful.
That is bloody scary! And, highly illegal.
Independent examiner (Score:5, Interesting)
The examiner would, of course, be bound to secrecy other than answering the above question.
Need to get right: 1) who chooses the examiner (we don't want a gov't stooge); 2) who drafts the wording to the question to be answered.
OK: the above is a nice idea, but it won't happen - governments don't like their workings scrutinised.
Re:Independent examiner (Score:4, Interesting)
Why would they? Seriously, you're talking about the US. One of the few nations in history that can call a shot that it will invade a sovreign nation and replace its government, follow through on that threat, and face absolutely no opposition, and even come out with exactly the same alliances and trade relationships as before. Certianly no domestic rebellion or resistant military.
And you think that country should, or would, subject itself to any scrutiny from someone outside its government because....?
Re:Independent examiner (Score:4, Insightful)
Re:Independent examiner (Score:5, Insightful)
Words are one thing. Actions are another.
legal system beond repair... Time for a reinstall! (Score:4, Insightful)
There is also the constant media consert in fortissimo about how the ends justify the means, i.e. chopping off liberty for the sake of temporary safety and all that jazz. Then there is the issue of seperation of Church and state is slowly but surely being erased. Unfounded wars of aggression (arguable to some extend though I guess) and last but not least, many computer programs are being Censored.
I find it easier to make a list (ala Kill Bill) no only for what needs to be done, but to check to make sure that basic rights are being violated. Lets call this list the constitution.
Here is your assignment for today kids: Go forth unto the internet and find EXTREME cases of governmental violations of each part of the constitution and the bill of rights. Extra points for snappy quotes from goverment officials and spokespeople chanting the party line!
Me thinks it time for a bloody revolution again!
(tickets sold seperately).
Re:legal system beond repair... Time for a reinsta (Score:5, Insightful)
huh? (Score:5, Insightful)
executive branch (Score:5, Insightful)
It seems like more than anything else, what has characterized this administration is the desire for power. The wiretaps don't piss me off because I think they are unjust. They piss me off, because wiretaps without any kind of oversight seem likely to be used against the administrations political enemies. The administration has already openly abused its power to try to destroy its such enemies numerous times... they've been hunting down the people that leaked the warantless wiretapping stufff forever (didn't they find one guy?) and will probably try to bring some kind of trumped up charge against their obviously legitimate whistlebloying. Who is to say they weren't tapping democratic campaign headquarters in the 2004 election? I'm not sure that, with the character the administration has itself to have recently, that I can say that is beneath them.
At some point if the power of the executive branch isn't checked, the presidential office itself, could become a threat to the country. With the kind of power that the president has, how difficult would it be to just refuse to step down after your term was up? This president has shown no regard for the law, and a willingness to make up paper thin excuses for his abuse of power. Maybe Bush wouldn't, or couldn't take power like that, but if we set a precedent where we allow the president to break the law, and grab power like crazy all through his administration just like this one did, what's to stop someone more ambitious than him from going further in the future?
I'd like to see congress put some mechanisms in place for checking the execute branch. Specifically, I'd like whatever authority that the administration *imagines* gives them the power to do warantless wiretaps specifically removed. Power to spy on whomever it pleases the administration, without even having to tell anyone in the other branches about it, is clearly a threat to the checks and balance system. Maybe a constitutional amendment needs to be made laying out the powers of the executive branch more specifically, and limiting the power to spy on anyone without oversight from the judicial, and maybe the legislative branch.
Turnabout (Score:3, Insightful)
"But it is in the interest of National Security that I do not perform my legal obligations, and I do not wish to tell you"
Hypocrites - A study in government responsibility.
Fast-track it. (Score:4, Insightful)
I pledge the fifth... (Score:4, Insightful)
Ok, let's ponder. So it would endanger "national security" if they told that they used ATNT to spy on their own citizens. Now, those citizens are, at least if I got the system in the US right, the ones that elect the ones in power. They are the "nation". So it would endanger their security if they knew whether they've been spied on.
Ignorance is strength... where've I heard that before...
Rarely used? (Score:3, Insightful)
Perhaps it should be called the CYA privilege.
Sounds like they're not denying it -- why?? (Score:5, Insightful)
It's exactly what people are suggesting it is, and the government is going to cover its ass with a big "state secret" stamp?
What is this? The frickin USSR?
Here's a clue: if the system had been set up via legislation, so that there was debate about its merits and it had some kind of legal legitimacy, it wouldn't be a big deal to keep the details of its implementation secret. But secretly set up something that sure sounds as if it must be violating well-established law, and of course people are going to be pissed off and demand answers to questions. They are asking now for answers and justification that should have been provided before the thing was deployed.
At least the Great Firewall of China is openly admitted to exist, and everybody already knows the government there is authoritarian. Does a Great Firewall of the USA exist? The world may never know. But if its existence and justification is not properly explained to its own people it will say much more about the current US regime than the answers to the legal questions in this case ever would.
In what kind of bizarro democracy would the government truly be better off not explaining itself? Shouldn't they dispell people's concerns about these rumors?
Just in from the AP (Score:4, Interesting)
And how many of these 3,501 where arrested as a terrorist? I suspect none or very , very few so how many of these where violated?
Re:But we don't have anything to hide.... (Score:5, Funny)