Court Orders Dismissal of US Wiretapping Lawsuit

jcatcw writes with a link to a ComputerWorld article about the dismissal of a case against the NSA over the wiretapping program revealed last year. The case was brought by the ACLU. A three-judge panel in the Sixth Circuit has sent the case back down to District court for ultimate dismissal. "The appeals court decision leaves opponents of the NSA program in a difficult position, said Jim Dempsey, policy director of the Center for Democracy and Technology, a civil liberties group that has opposed the program. The appeals court ruled that the plaintiffs could not sue because they can't prove they were affected by the program, and at the same time, ruled that details about the program, including who was targeted, are state secrets."

Tough ground

[mulvane (692631)]

The only way to prove you were affected is to be affected. The fact you were affected you can't prove even when you are affected because the fact that you were is to remain a state secret.

Re:Tough ground

[The Angry Mick (632931)]

The only way to prove you were affected is to be affected. The fact you were affected you can't prove even when you are affected because the fact that you were is to remain a state secret.

Ok . . my head just exploded.

Re:Tough ground

[jimstapleton (999106)]

I've nothing against the tapping in and of itself, I keep on the legal side of the fence, and honestly, I don't know anyone who will do the tapping so I don't care if they hear me complaining on the phone to a friend about the results of that extra-bean burrito I ate...

Regardless, a government that does not follow the rules and restrictions set for it by itself and its people is just as much of a threat as any malicious foreign party. Which leads me to my next question - can they take further action on this case, or was it pretty much shot down, and prevented from going higher? The quotes didn't seem optimistic.

Lawyers....

[tinkerghost (944862)]

How about if you were a lawyer? Do you think the NSA would be bothered in the least about passing along information to the DOJ reguarding your stratagies in pursuing a $B class action case against the US for unlawful imprisonment?

The problem isn't that the NSA is tapping the phones of US citizens, it's that Nixon did it & the US govt expressly wrote laws forbidding exactly what the NSA is doing - unsupervised wiretaps. They created an entire court & post approval schemes to make sure that the approval process didn't interfier with priority/time sensative investigations. I don't care if you aren't breaking the law & don't care who listens in on your calls. I do care that the Federal Government doesn't give a shit about the very rule of law it's supposed to be upholding!

Bush & the NSA got caught with their hands in the cookie jar. Like the average 2 year old, they first denied that the facts were the facts. Once they couldn't get past that point they switched to beligerant teenager & just said 'fuck off the rules don't apply to me'. That's where we stand now. Bush & the NSA acknowledge that they broke the law & then hide behind the 'state secrets' act to shield themselves from any investigation/proscecution relating to it.

Note how they are even stonewalling the security subcommity that's trying to look into exactly how bad of a legal fuckup this is. "This stuff is so super secret that we can't even show 8 members of Congress with top level security clearances what we are doing. The fact that we are legally mandated to advise them & we can only perform these operations under their oversight is irrelevant."

I think this is eventually going to fall apart into a cluster fuck that's going to make Watergate look like a well coreographed ballet. This suit was turned down because the plaintifs couldn't show direct harm with the 'chilling effect' on free speech being completely dismissed by 2 judges as a 'concoction'. Eventually there's going to be an arrest made & it'll get tied to the NSA.

The game is over once that happens, Bush has already lost almost every aspect of the 'state secrets' cover he has. As more & more information is leaked out, he's got less & less coverage. The 'unable to show cause' requirement to continue these cases is one of the last pieces of the puzzle. Once a case is tied to the project, that's gone & he's down to 'fuck off'. There's one case that's already in play because of this very fact. Parts of it were thrown out, but the judge ruled that there is enough public knowledge about the project to continue, and the fact that the party suing was accidentally provided documents showing he was under survailance is sufficient to prove cause.

The Shrub has all the pieces he needs to do the job, he just doesn't like having to play by the rules that accompany those tools. Sorry, if he can't win playing by the rules, he needs to step asside & let someone else have thier chance.

Re:Tough ground

[jimstapleton (999106)]

Two good reasons I can think of at the moment:

If people know they are being spied on an tapped, they'll take fewer risks and give less away.

Likewise, if they know they /aren't/ they'll be more agressive in their interactions and get things done faster, with possibly better organization.

Our era's reverse catch 22.

[RyanFenton (230700)]

There was only one catch and that was Catch-22, which specified that a concern for one's safety in the face of dangers that were real and immediate was the process of a rational mind. (Lt.) Orr was crazy and could be grounded. All he had to do was ask; and as soon as he did, he would no longer be crazy and would have to fly more missions. Orr would be crazy to fly more missions and sane if he didn't, but if he was sane he had to fly them. If he flew them he was crazy and didn't have to; but if he didn't want to he was sane and had to. Yossarian was moved very deeply by the absolute simplicity of this clause of Catch-22 and let out a respectful whistle.

                "That's some catch, that Catch-22," he [Yossarian] observed.
                "It's the best there is," Doc Daneeka agreed.

Instead, it's fear of terror that's the new catch, completely unaccountable in its all-enforcing secrecy from the people the system is supposed to represent, and completely against the constitution that gives it the charter it exists to serve.

Ryan Fenton

Appeal?

[Shadow Wrought (586631)]

I'd think they should be able to appeal to the Supreme Court though. How can you prove you have standing if it illegal for you to know whether you have standing or not. Even the current Court would find that one difficult I'd think.

Checks and Balances

[ushering05401 (1086795)]

Our government was set up on a basis of checks and balances to keep things on the straight and narrow. In a Democracy, however, the governmental checks and balances are tier 2 of the mechanism to keep things in line. The voting populace is tier 1. Without the ability to understand what the government is doing (the information is classified) we are unable to direct the government through elections.

We are looking at an example where the checks and balances system is being undermined at the most fundamental level.

We seem to be living at the period in American history that future peoples will point to when discussing the unraveling of our Nation.

Regards.

See no evil, hear no evil?

[Vellmont (569020)]

So the court has ruled that as long as the government keeps it's mouth shut about who it was spying on, no one can ever sue the government over un-constitutional spying. Great. No plaintiffs, no lawsuit, no broken laws.

Of course at SOME point, maybe in 20 years or so, the names of who the government was spying on will have to become a non-secret, and thus available under a FOIA request.

Let me get this straight...

[jd (1658)]

• Those who can prove they were affected are mishandling classified material and are therefore terrorists
• Those who can prove they were NOT affected must also be mishandling classified material, but since they're not terrorists, they must be traitors
• Those who can reasonably conclude they were probably affected can't sue because probable cause is not proof
• The remainder of the population is obviously hiding something and is probably being spied on by all the other agencies

Fortunately, the decision can be appealed. No guarantee that would do any good. Since we're in election season, judges are standing by their political affiliations on all sides. Even if the decision was favorable to the plaintiffs, though, there's no reason to believe that it'll do any good. How many Republican senators are going to want to look weak on national security right now? That means even if the matter does stay in the courts, it is very unlikely anything will happen before late in November 2008. Of course, if it does stay in the courts, the NSA could just plead guilty and have the President issue a full pardon the following day, rescinding the finding and penalties exacted.

Wow, two for the price of one

[Zak3056 (69287)]

Wow, so the appeals court upholds the violation of the fourth amendment, and at the same time pisses all over the first (petition for redress.) Truly, this is an awe-inspiring day. Surely, the men who signed the Declaration of Independence, almost exactly 231 years ago would sing from the rooftops in joy at what became of the nation that they pledged their "lives, fortunes, and sacred honor" to create.

Entrap The Government

[porkface (562081)]

It's time for the EFF and some supernerds to entrap the government.

Plant some communications that raise the government's interest enough to show up to investigate. Ensure the communications, once the plot is revealed, would not be judged to be a real threat or significantly illegal otherwise. But make sure it raises ire and causes a response that could not otherwise have been wise to the communications had they not been illegally snooping.

Bonus points if you can make it high profile enough that Cheney cannot absolve himself of knowledge of the details of the trap.

Patriots, out of options

[Phoenix666 (184391)]

Congress won't enforce the law. The Executive branch won't police itself. The Judicial branch rules citizens can't sue because the details are classified by the Executive branch. It's a perfect, closed system. No one in the government is accountable to us anymore.

The government no longer answers to the citizens, according the the system we set up to run it. It's a very short, swift step from where we are to where ordinary citizens disappear in the night (non-Muslims, that is). We won't know exactly when that moment arrives, because we won't be told, because no one in the government obeys or enforces the law anymore.

Let's assume for a moment that you're not someone who buries his head in the sand, saying 'As long as I'm not doing anything wrong, why should I care what the government does to others?' Let's assume that your response to crisis is not to hop in your SUV, drive down to the mall, and go shopping. And let's further assume that you're a red-blooded, patriotic American who really cares about freedom and the rule of law, and about protecting the country against all enemies, foreign and domestic.

So ask yourself, what recourse do you have now?

What recourse, indeed!

[triskaidekaphile (252815)]

Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn that mankind are more disposed to suffer, while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.

Sound familiar? [archives.gov]

Re:Good News !!

[The Angry Mick (632931)]

I know it goes against the current liberal anti-Bush Slashdot crowd - If you aren't doing illegal activities over the phone / airwaves / Internet then why worry ?

Because what it perfectly legal now, may not be so in the near future.

Re:Good News !!

[ushering05401 (1086795)]

If that were true then the 400+ people held at Gitmo over these many years would have resulted in more that a small handful of trials and more than a sprinkling of convictions.

We don't know why they choose to hold the people they do, and they do not have to tell us. For all we know the Gitmo detentions are as much to change the political landscape in the Middle East as they are to fight terrorism.

We have no idea what the NSA is looking for when they are wiretapping, and more importantly, we do not know what they might find profitable to look for in the future. We only know that they are permitted to operate without oversight.

Regards.

Re:Good News !!

[GodfatherofSoul (174979)]

Firstly, Bush's approval rating is around 1/3 and probably at about 28%. So, unless you're willing to admit that most US citizens are liberal and that conservatism is loud-mouthed minority, then please stop assuming that anti-Bush means "liberal."

You've just sounded the mating call of the head-burying oppression sheep. Apparently, privacy to you only applies to those in power even when they break the law. I have to assume you respect the President and Co-President's unprecedented lack of disclosure. I suppose you have no problems with the government spying on innocent protest groups or citizens who object to public policy. I suppose you also have no problem with the government spying on the political strategies of its opponents. I suppose you have no problems with government using private details of people's lives to extort or intimidate them. I suppose you have no problems with authoritarianism as well since Big Brother knows what's best for all of us.

If Ben Franklin were here to read your ignorant post, you'd soon feel the swift kick of a brass-buckled foot to your back-side.

Fine, send them transcripts at your expense.

[twitter (104583)]

As far as I am concerned the NSA/CIA/FBI/??? can wiretap and monitor me to their hearts content I promise it will not only be useless but incredibly boring.

Would it be OK if a government clerk spied out your business decisions and passed them on to a competitor that could pay?

Would you mind if there was only one political party because it was able to identify and neutralize anyone who disagreed with them?

Would you mind doing some menial job for your new corporate masters for the rest of your life? Remember, though crime will result in relative economic hardships. The only thing more expensive then freedom is slavery.

I mind all of the above and resent paying for such abuse. If you want a life like that, pay for it yourself.

Re:Good News !!

[sammy baby (14909)]

Good question. Here's your answer:

Amendment IV

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Re:Good News !!

[mrscorpio (265337)]

Ah, the classic "I'm not doing anything wrong so I don't have to worry about it" argument.

Well then do this for me:

-Record all of your phone calls and post them on the internet
-Put up all your sent/received e-mails on the internet
-Print out a copy of your bank statements showing all transactions, and put them up on the internet
-Leave your curtains/blinds open 24/7
-Stop mailing things in envelopes, send everything as a post card
-Make sure to leave your stall door open when you use the restroom at Chili's

After all, you have nothing to hide right?

You might argue that the general public having access is not the same as the government having access, and perhaps that's true. But who makes up the government? That's right, people like you and me (of/by/for the people, remember?) And when 10 years from now, your neighbor who now works for the government and has an axe to grind, pulls the complete history of your phone records and searches through it using some key words to find something to embarrass you with, you'll realize that you (and everyone else in the world) DO have something to hide, and it's not unreasonable to feel that way, even if you have committed no illegal acts. Our personal identities and our safety are centered around being able to keep some things private.

But have you REALLY committed no illegal acts? You've never traveled 1 mph over the speed limit, or downloaded a single song you didn't own, or eaten a grape you didn't pay for at the grocey store, or jaywalked, etc.?

Have you ever read Amendment #4, by the way? I'm sure some neocon lawyer type could argue that the subject of this article doesn't violate the letter of it, but it can't be argued against that it violates the SPIRIT of that amendment.

Here's an article for your further consideration:

http://www.huffingtonpost.com/geoffrey-r-stone/nsa -surveillance-why-sho_b_16763.html [huffingtonpost.com]

Defined: Liberal

[by Anonymous Coward]

I'm sick and fucking tired of hearing this word tossed around like a pejorative. Learn the definition! [wikipedia.org].

Here's a snippet:

Broadly speaking, liberalism emphasizes individual rights and equality of opportunity. A liberal society is characterized by freedom of thought for individuals, limitations on power, the rule of law, the free exchange of ideas, a market economy, free private enterprise, and a transparent system of government in which the rights of all citizens are protected.

You might think twice before you start trash talking a philosophy whose principle tenets promote the very "freedoms" you conservatives claim to love, yet consistently take away.

Re:Better luck next time

[StrongAxe (713301)]

Which is all true. So they should have chosen a better angle under which to file a complaint. Either find someone affected, or argue convincingly that such state secrets are unconstitutional. Should be a breeze given the current make up of the supreme court.

Wait. You think that the current conservatively-biased court would vote against the Republican administration and its theories about state secrets and executive privilege?

Re:The thing that really bugs me...

[MaceyHW (832021)]

I am a law student, not a lawyer, and standing is dealt with in upper level courses that I haven't taken yet, but Wikipedia [wikipedia.org] provides the following nugget that seems to answer your question

The Court developed a two-part test to determine whether the plaintiffs had standing to sue. First, because a taxpayer alleges injury only by virtue of his liability for taxes, the Court held that "a taxpayer will be a proper party to allege the unconstitutionality only of exercises of congressional power under the taxing and spending clause of Art. I, 8, of the Constitution." *479 Id., at 102, 88 S.Ct., at 1954. Second, the Court required the taxpayer to "show that the challenged enactment exceeds specific constitutional limitations upon the exercise of the taxing and spending power and not simply that the enactment is generally beyond the powers delegated to Congress by Art. I, 8." Id., at 102-103, 88 S.Ct., at 1954."

(note, the article is about Flast v. Cohen but the case quoted is Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464 (1982)).

It would seem to me that the reasoning goes something like this "you're claiming harm via the payment of taxes, so the harm has to be directly related to the payment of taxes. This means that the violation you're claiming has to be a violation of Congress's constitional authority to tax or to spend. Sorry, any old violation of the Constitution won't do."

Now is that sane? Maybe not, but you asked for a legal argument, not a sane one.

Re:Better yet...

[Valdrax (32670)]

The NRA tends to support politicians that supported the illegal wiretapping.

Re:Fir Pos?

[wsherman (154283)]

This really isn't anything to do with Bush,...

From an article in the New York Times [nytimes.com]:

Judge Batchelder was appointed by President George Bush, Judge Gibbons by President George W. Bush and Judge Gilman by President Bill Clinton. Judge Taylor, the district court judge, was appointed by President Jimmy Carter.

Judge Batchelder (George Bush) wrote the majority opinion, Judge Gibbons (George W. Bush) concurred with the majority, and Judge Gilman (Bill Clinton) dissented. Judge Taylor (Jimmy Carter) was the district court judge who was over-ruled.