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Government Seeks Dismissal of Spy Suit
Posted by
kdawson
on Sun Jan 28, 2007 07:40 AM
from the let's-call-the-whole-thing-off dept.
from the let's-call-the-whole-thing-off dept.
The Wired blog 27B Stroke 6 is carrying the news that the US has filed a motion to drop the case the ACLU won in lower court against the government's warrantless wiretapping program. The government's appeal of that ruling will be heard on Wednesday, January 31 in front of the Sixth Circuit court of appeals. The feds argue that the case is now moot because they are now obtaining warrants from the FISA court, and furthermore President Bush did not renew the warrantless program. Turns out there's a Supreme Court precedent saying that if you were doing something illegal, get taken to court, and then stop the illegal activity, you're not off the hook. The feds argue in their petition that this precedent does not apply to them. Here is the government's filing (PDF).
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So lets see if I have this chain of events right: (Score:5, Funny)
Governmnet: Yea but we stopped after we were sued.
Court: Yes, but that doesn't get you off the hook.
Government: Hey look! Behind you! A two headed moose!
Court: *Whrils around* Where? Where? I demand to know where!
Government: *Runs away*
Now IANAL, but that sounds like a reasonable summary to me.
Re:So lets see if I have this chain of events righ (Score:3, Insightful)
Re:So lets see if I have this chain of events righ (Score:5, Interesting)
So how are your militias going? It is time to feed the tree of freedom, and I nominate every congrescritter that opposes impeaching BabyBush.
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There's still hope. I don't really believe it, but as long as there is at least the option that Bu
Re:So lets see if I have this chain of events righ (Score:5, Informative)
It is my understanding of FISA that getting a warrant after the fact is perfectly legal if the warrant is obtained within 72 hours. The Bush administration refused to even do that! The reason FISA exists is so that someone outside the administration (i.e., at least one federal judge) is aware of who and what is being wiretapped and will hopefully keep them from abusing the power of the intelligence services as had been the case from WWII to Watergate. During the 1960's the government was spying on the likes of Martin Luther King, Vietnam War protesters, and many others who did not warrant it. The government even had the audacity to attempt to use the information gathered about King to coerce him to commit suicide [rutherford.org].
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The feds argue that the case is now moot because they are now obtaining warrants from the FISA court, and furthermore President Bush did not renew the warrantless program.
So..their arugment comes down to: we are no longer committ
Re:So lets see if I have this chain of events righ (Score:5, Interesting)
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That is not as meaningless as you seem to imply. First it still sets a precident, either way. "W
Re:So lets see if I have this chain of events righ (Score:5, Insightful)
I take particular conflict with this statement. The fed's continued assertion that the program was lawful without FISA approval shows that they can, and will use this 'constitutional authority' again as the perceived need arises. On that basis alone, the balance of prejudice against state secrets powers, constitutional power of the executive brach during times of war and mootness versus the right of the people to use the last check in the federal system to prevent future harm is highly in favor of letting the case proceed.
Re:So lets see if I have this chain of events righ (Score:5, Insightful)
I have no confidence that Bush will obey any adverse ruling that comes out of this case. After all, to do so would undermine the "unitary executive" theory of government upon which he bases his dictatorial actions. I suspect that, in the back of his little twisted mind, he thinks he's immune to actions by the other branches of government. After all, "How many divisions does the Supreme Court have?" In the final analysis it's only the willingness of each branch of government to abide by decisions made by another that makes our form of government work. With his signing statements Bush has repeatedly demonstrated that only he, as the "unitary executive", will make the determination of how a law is to be interpreted or enforced. The Attorney General has recently stated in Senate hearings that the civil liberties embodied in our Constitution do not apply all the time: http://www.lewrockwell.com/eddlem/eddlem14.html [lewrockwell.com]. Given that mindset there is nothing to prevent this President from deciding that he is not subject to rulings of the courts and I'm sure that he will have no problem getting a ruling to that effect from his AG and others in his administration.
This country is facing a Constitutional crisis that makes the Watergate affair pale by comparison. Between a President who believes that he is not bound by the rule of law and willingly believes whatever twisted interpretation of same will allow him to achieve his ends while appearing to act within the law and a Congress whose members have, by and large, stood by while he has shredded most of the Consitution we have arrived at this point. President Bush has been allowed to carry out whatever course of action he wants, be it the suspension of habeus corpus, torture, secret imprisonment, warrantless wiretapping, etc. with nothing of substance being done to stop him. Indeed, the Congress has abetted him by passing such legislation as the PATRIOT ACT, the Military Commissions Act of 2006, and the Anti-Torture Act of 2005 (which merely formalized AG Gonzales' interpretation of what constitutes torture, essentially allowing anything short of causing death). All he has had to do is to cloak himself in the flag and claim that Patriotism and a desire to "keep America safe" justify his actions. Congress is as much a part of this travesty as he is and the decision by the new Democratic leadership to "take impeachment off the table" can only have strengthened his view of the correctness of his actions. There is still some hope that our course can be reversed, but doing so will require a concerted effort by the Congress, the Courts, and the People to achieve it. Let's hope that the courts don't let us down and that they allow this suit to go forward. At least it would be a start.
Just my $.02,
Ron
What a difference a Congress makes. (Score:5, Insightful)
Now, it's back to the Court and warrants are being issued and there's no need to take this to the SCOTUS because we're not doing anything illegal
Just for that reason this MUST be seen by the SCOTUS.
This is still a Democracy.
Exactly. If it were a security matter, (Score:4, Interesting)
This pattern of hyping a security threat and forgetting about it when challenged has come up before. Yaser Esam Hamdi was supposedly too dangerous ever to be set free, allowing him to see a lawyer was somehow supposed to endanger our national security, and when he finally did get to meet an attorney the military recorded the entire meeting.
So, when the Supreme Court ruled that a US citizen was entitled to say "put up or shut up" when imprisoned, did the government build up a prosecution based on the Qala-e-Jangi prison riot? No -- they cut him loose and shipped him to Saudi Arabia. Pretty much the last thing anyone who cared about the country would do if they really thought he were a terrorist.
We already knew that it wasn't a national security issue whether a security-cleared patriotic judge saw the wiretap applications beforehand (even after the fact if the government so chose). Now we know that the Administration didn't even think it was a national security issue.
it's like (Score:4, Insightful)
Re:it's like (Score:4, Interesting)
Actually ... (Score:2)
It would be like arguing that you have stopped beating your wife, but you retain the right to resume beating her if she "really needs it".
The governments play here is quite plain and obvious. Getting the case this far has taken a long time. They are seek
Not FISA court approval (Score:5, Informative)
An actual legal FISA warrant is done case by case:
Each application
for a surveillance order must include, inter alia:
1) the identity of the federal officer making
the application;
2) the authority conferred on the Attorney
General by the President of the United States
and the approval of the Attorney General to
make the application;
3) the identity, if known, or a description of
the target of the electronic surveillance;
4) a statement of the facts and circumstances
relied upon by the applicant to justify his
belief that . . . the target of the electronic surveillance
is a foreign power or an agent of a
foreign power . . . [and] each of the facilities
or places [to be subjected to the surveillance]
. . . is being used, or is about to be used, by a
foreign power or an agent of a foreign power;
5) a statement of the proposed minimization
procedures;
6) a detailed description of the nature of the
information sought and the type of communications
or activities to be subjected to the surveillance;
[and]
7) a certification [from an appropriate executive
branch official] . . . that the certifying
official deems the information sought to be
foreign intelligence information . . . that the
purpose of the surveillance is to obtain foreign
intelligence information . . . that such
information cannot reasonably be obtained
by normal investigative techniques . . . .
http://fas.org/irp/agency/doj/fisa/sojudge.pdf [fas.org]
Re:Not FISA court approval (Score:5, Informative)
Yay, a general warrant [wikipedia.org]! We don't need no stinking Fourth Amendment!
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Section D of the government filing (Score:2, Informative)
'A judge from the FISA court issued order authorising the government to target for collection international
i.e. a blanket authorization from a single FISA judge, a power the FISA court isn't empo
Re:Section D of the government filing (Score:5, Informative)
The Fourth Ammendment:
Of course that's what the feds say (Score:3, Insightful)
I wouldn't expect the feds to argue any different. King George and his regime have been arguing that the Constitution doesn't apply to them and the Bill of Rights doesn't apply to them. How could anyone think they'd accept prior case law as applying to them.
Gotta remember this (Score:5, Insightful)
Right?
Oh, wait. Doesn't that mean Bush should also stop hunting Bin Laden? I mean, he hasn't crashed any airliners into skycrapers for years now.
The mind boggles trying to follow what passes for "reason" in your government. I once thought Bush is stupid. I don't do that anymore. I think he has some unknown insanity that is contagious.
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Re:Gotta remember this (Score:4, Informative)
I just tried for quite a while, and I can find no mention of this in the constitution. What part is it in?
The closest thing I found was in article 1, section 3, about the Senate:
What this clearly says is that the impeachment process itself can only result in getting the target tossed from office; but that the rest of the body of law, and punishment, still applies in the normal venues, that is, police, court, jail and so on. It doesn't say that the person has to be impeached before normal procedures take effect, either.
In article 2, section 4, we find this:
Here, under article 3, the judicial branch, we find:
The above makes it clear that the courts do indeed have jurisdiction when the case involves a "public minister" and furthermore, the last part clearly sets out what to do in the case of trials of "other" kind than impeachment, meaning they were specifically thinking that law should apply to public officials (as of course it should, what, were they supposed to be idiots?) Not only that, the wording makes it clear that such trial can occur without impeachment - so impeachment does not have to come first.
This whole business of the president being "immune" smells like nonsense of the first degree to me, and I utterly fail to see any constitutional justification for it. Barring anyone pointing out something critical I've missed here, my position is that Bush is a crook, he is long past needing to be arrested for illegal wiretapping, torture, and obstruction of justice - he is the responsible party - and tried, and punished. Congress can get
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I don't have any problem with that. However, the constitution does not gran
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I understand what you're getting at, and in a strictly technical sense, you are correct. That doesn't mean it
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Otherwise (ie. a criminal case for individual offenses), no.
I Got Better (Score:3, Interesting)
That specific example will probably show up in court. If not in this spy suit, then at the Bush/Cheney/Rumsfeld/Neocon war crimes trials.
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If they win (Score:5, Interesting)
Power Company (Score:4, Insightful)
Because all that BushCo has learned from politics is the Nixon philosophy "it's only a crime when you get caught". Because the Bush admin made its bones in the Nixon admin [google.com].
These people will do anything for tyrannical powers, including use ones they don't actually have to get them. The Constitution is designed to stop such criminal tyrants: impeachment [u-s-history.com]. It works only while the Constitution still has more power than the tyrants attacking it.
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Study of Kafka (Score:5, Insightful)
This is the same trial, I think, in which one of the lawyers for the plaintiffs said he was studying Kafka as a refresher course on bizarre legal proceedings.
If the only goal of the plaintiffs was to seek an end of the government's wiretapping activities, then the government's request would not be illogical. One of the major disadvantages of the Common Law system is that it is so laborious and costly that only a minority of cases can actually be decided in court. Stopping a procedure to achieve a goal that is already achieved, would save time and money.
Unfortunately for the government, one of the plaintiffs is seeking civil damages, because documents that got accidentally in the "wrong" hands, revealed that it was being illegally spied upon. And this damages part of the trial clearly cannot be avoided by simply stopping the snooping, as it applies to the past. The US government's position on this appears to be that it cannot be prosecuted because all evidence against it is secret (how convenient) and should never have been seen by the plaintiffs, their lawyers, or the court. It did not yet file a formal request to have any memory of it erased from their minds, but I am sure that is only because they lack the technology, not because they have an scruples about it.
This, of course, is only the civil side of the issue. I think possible criminal prosecution is still open regardless of what is decided in this case, although it may have to wait for the end of the Bush administration.
As far as I remember, in some Italian republics of the Renaissance government officials were sent to court automatically after the end of their tenure. They had to account for their actions in office and clear their names of accusations of abuse of power. Maybe that is a system the USA should be considering again.
This Is Awesome. (Score:2, Insightful)
Do as I say not as I do should be the new motto on the money.
Summary of U.S. government corruption (Score:3, Informative)
I wrote a summary of the corruption: George W. Bush comedy and tragedy [futurepower.org]. I hope other people will write their own summaries and send them to their elected representatives. I love the U.S. and the corruption is extremely unhappy for me.
--
U.S. government violence in Iraq causes more violence, not peaceful democracy. Violence breeds violence.
What part of the government? (Score:4, Informative)
To refer to the executive branch as "the government" is incredibly misleading. Congress is now controlled by the Democrats, which means the president now has to get everything approved by a group with conflicting views. Then there's the judicial branch, which at this point is still trying to hold the NSA responsible. To call one agency of one branch of the government "the government" shows an incredibly poor understanding of hour our government works. For a while we may have been headed down a path where the executive branch was the only one with any authority, but thankfully this is looking to be less and less the case.
Selective use and abuse of the constitution (Score:2)
It seems that this administration and the people behind it's policies want to selectively use and selectively abuse the constitution.
They want to disregard, eviscerate and invalidate parts of the constitution which provide
Old story: Palmer Raids, Cointelpro, etc. (Score:2)
Abuse of office -- the roots of imperial Federal power -- old story. Take for example the early twentieth centure --
Can't we all just leave the past where it belongs? (Score:2, Funny)
"You can't take me to court, Nicole isn't dying, she's dead! That's past tense, see. I'm not still killing her!"
I am scared for the very democracy we live in (Score:4, Insightful)
I've noticed that recently this seems to have stopped being a Republican/Democrat thing and seems to have become an Executive Branch vs. Congress sort of thing. Dozens of Republican congressmen are now speaking critically of our president and his cabinet publicly. While I think this is a very good thing, I think it may be too little too late. So much damage has already been done. Laws like the Patriot Act have already been passed and implemented and our President has too much power and momentum going his way.
We have secret prisons and our citizens (and non-citizens alike) can be tried in secret courts. Hell, we don't even have to try them according to the Justice Department, Habeas Corpus is actually not a constitutional right!
Don't forget that our president was elected based on a highly questionable election in 2000. Many people called it a bloodless coup! I have no explanation on how he was re-elected in 2004 and frankly, I fear that the power structure is already in place to make the 2008 election another sham. I suspect that the people that control this administration will stop at nothing to remain in control.
The president and his cronies lied to us about the threat that Iraq represented and they dragged us into an illegal war that has killed thousands of people and maimed tens of thousands more. He sent our troops into battle without adequate protection and recently ordered even more in to Iraq despite the fact that we no longer have much of a reason to be there.
Our president is out-of-touch with the citizenry, he is not listening to congress or even to logic. He and his administration are operating not according to law but rather as they wish. The executive branch while part of a democracy is not functioning as if it is a component of a democratic nation but rather as if it were a dictatorship.
I think we need to place our hope in the third triad of our government, the one that is least democratic (it is not elected and its members are appointed for life). We must rely on the Judicial Branch to make the right decisions to keep democracy intact. Court cases like this one, and the one testing Habeas Corpus, are quite literally a test of the mettle of our country. Sadly, we have a (politically) "conservative" court, the majority of which were appointed by Republicans, the same people who are in control of our Executive Branch.
I am worried about what America is letting itself become. I don't think that our
leadership in the Executive Branch any longer has any interest in representing "we the people" and I worry that we may be too late to restore our country to what it was.
Voluntary cessation... (Score:2)
mod parent down immediately! (Score:2, Redundant)
Slashdot is a good source (Score:2)
Re: (Score:2)
Above the Law (Score:2)
Nothing applies to them, because they have the ways and means -- the guns and the spies -- the money and the power -- and becaue they wish to listen to anything, anytime, anywhere.
-kgj