Supreme Court Won't Hear ACLU Wiretap Case 323
I Don't Believe in Imaginary Property writes "The US Supreme Court refused without comment the ACLU's appeal of a lower court ruling that prevented them from suing over the government's warrantless TSP program. The problem was a Catch-22: they lack legal 'standing' to sue over it because they can't prove that they were suspected terrorists, but neither can they find out who was actually suspected, because this is a matter of national security." Update: 02/20 00:17 GMT by KD : Removed an incorrect statement after a reader pointed out that, with the expiration of the Protect America Act this weekend, foreign surveillance will revert to oversight by the FISA court.
Must be a terrorist to challenge the law? (Score:2, Interesting)
Re:Far too much power (Score:5, Interesting)
Looking from a purely constitutional perspective, the supreme court is also the branch that has abused its power the least imho. Congress routinely enacts laws that are only constitutional if justified by the "general welfare" clause of the preamble, not any part of the actual constitution. The president can send troops anywhere to fight that he wants without a declaration of war, and this president has outright ignored several parts of the constitution.
So, while I am a strong believer that the supreme court has had its share of overreaching rulings that weren't strictly constitutional, I think that pales in comparison to the abuses that the other branches have managed to pull off.
Re:What was that again? (Score:5, Interesting)
Damn, and I'm out of practice on the last one.
Before the Law (Score:5, Interesting)
Only 95% onerous (Score:4, Interesting)
Of course, it's still 95% onerous, because there are still people reviewing the wiretap data (recordings, records, etc.) and those people are privy to otherwise private conversations.
Re:What did you expect? (Score:4, Interesting)
That hand doesn't feed them. They serve for life. The president has no political power over sitting justices. They ARE loyal cronies, but that won't change with administrations.
Re:Far too much power (Score:5, Interesting)
Really? You should double check the Constitution with regards to the enumerated powers (you know, what the 10th amendment discusses) of SCOTUS... in fact they are the ones (not the constitution) that declared themselves the supreme arbiter of the constitution (see Marbury v. Madison).
Technically speaking... the scope of power SCOTUS has is in of itself unconstitutional... problem is that as things have evolved... in order to change things back... we'd either need a SCOTUS ruling (of them giving up their power) or a constitutional amendment... which could still in theory be ignored by them (see cases of how they have ignored the 10th amendment).
Re:Far too much power (Score:5, Interesting)
In Free Lunch [npr.org], David Cay Johnston notes a trend in limiting access to the courts. In this way, If someone somewhere doesn't want a case to be heard, they just have to buy a little influence and can claim a legitimate victory. Note the reason the courts dismissed ACLU's earlier efforts in this line: only persons under surveillance have standing to sue, and the nature of the program is such that you're not allowed to know that you're under surveillance. That is, if you can prove that you have standing, you can be imprisoned. If you can prove that someone else has standing, you can be imprisoned.
In the book, Johnston details one case of a couple who owned an auto repair business in a spot where (I think) Jeep wanted green space for its factory complex. You can guess whose complaint was thrown out. These days it seems like there are only checks and balances when they're backed up by personal relationships or bullying. Note the number of subpoenas the white house has simply ignored.
Re:Only 95% onerous (Score:1, Interesting)
1. The evidence could be presented before a closed court, with the record sealed. The judge and/or defense may ignore the scource of the evidence.
2. The evidence could be presented in more of a "tribunal" setting.
3. The "accused" could just be shipped off to Guantanamo or some secret prison in Europe for "questioning".
Frankly, all of these are believable, given news in the last few years.
Not quite (Score:3, Interesting)
The whole point of the lifetime appointment of judges to the Supreme Court is that they wouldn't have to be beholden to whichever powers appointed them. Scalia, Alito, and Thomas could have a change of heart and become flag-burning, dope-smoking, abortion-promoting hippies, and there's really nothing that could be done to punish them. I think they can be impeached by Congress, but that isn't really common.
Re:What did you expect? (Score:5, Interesting)
This particular legal doctrine has nothing to do with the Bush administration. Despite the Catch-22 of "lack of standing", it's used quite often. Courts have been avoiding Second Amendment challenges for decades, using the same rationale.
A writ of certiorari requires only four votes among the nine Supreme Court justices. Four justices: Stevens, Souter, Ginsburg and Breyer, are generally thought of as the Court's liberal wing. If they felt strongly about this case, they could have voted to do so.
Re:Far too much power (Score:5, Interesting)
How you figure? The Constitution itself states that the Judicial branch shall have jurisdiction over all cases arising under the Law of the U.S. and the Constitution. Marbury v Madison was just a case where a Law passed by Congress conflicted with the Constitution -- and again, it is clear from the Constitution that in such a case, the Constitution wins. That case may have formalized the notion of "Judicial Review", but the principle itself is quite Constitutional.
Oh and by the way, the statute which the Court ruled in Marbury v Madison to be Unconstitutional was one which increased the Court's power. It's kind of hard to call this a power grab when the executed their Constitutional power to judge a case under the law in order to reject an Unconstitutional increase in power.
see cases of how they have ignored the 10th amendment
True enough, everyone pretty much ignores the 9th and 10th. But it's worth pointing out that they ignore this ammendment by not finding a law passed by Congress to be in conflict with the 10th, and thus Unconstitutional. How exactly would they do this if not via Judicial Review as established via Marbury v Madison?
In other words this is a case of the Judicial Branch abusing their powers by under-utilizing them, resulting in an increase in power of the other two branches.
Re:Far too much power (Score:5, Interesting)
Note, of course, that the "general welfare" clause was not intended to permit unrestrained growth of government services for whatever vaguely-collective reason Congresspeople might concoct in the service's defense. The "general welfare" clause was not intended to permit galloping socialism.
At least, that's true according to James Madison in Federalist 41. [wikipedia.org] Alexander Hamilton, OTOH, took the broader view that Congress may spend as it sees fit, so long as it doesn't favor a particular party.
Of course, even according to Hamilton's relatively-leftist, pro-government position, expenses to pay for, say, private military contractors, farm subsidies (which mostly go to the largest 20% of farms, often owned by e.g. Tyson Foods), welfare checks for the poor, (benefiting a subset of the population is not necessarily a benefit to the whole population. This doesn't make welfare a bad idea (though its implementations thus-far have ranged from moderately-useful at best (e.g. the EITC), and idiotic at worst) - merely, it conflicts with the way the U.S. Constitution both stands and as was intended by its authors), etc. would, I suspect, be invalid reasons for government spending.
Luckily for American Congresspeople, the majority of the American public has neither read the Constitution or Bill of Rights, nor has been asked to think hard about those documents -- we can thank the public education that the Dept. of Education tries to manage -- and the 20% or so who might have given them more than a passing thought tend neither to abide by those documents nor care about their intent. Combined with incentives to ignore the meaning of the highest law of the land, Congresspeople thus trample the documents they are supposed to uphold...
Re:In other words (Score:5, Interesting)
Simple way out of catch-22 (Score:4, Interesting)
On the other hand, good luck in getting Congress to do something as blatantly beneficial for the country as that...
Re:U.S. government: Lots of catches (Score:4, Interesting)
Last I checked they still have plenty of friends in the oil industry, and may want extremely cushy and well paying jobs in a ridiculously profitable industry after they're done running the country. Of course Cheney's Halliburton stock option sales all go to charity, so there's no direct personal conflict of interest. Thus there's no motivation whatsoever and all those no-bid contracts were perfectly fair? Yeah right, making huge bank for all their oil and defense contractor friends is a huge motivation, and one they themselves will ultimately reap the benefit from.
How much you want to bet Cheney ends up back on the Board of Directors for any number of companies who directly profited from the war in Iraq?
Also, the Oil futures market is much larger than anything going on in Iraq. Oil is rising not because of anything Bush or Cheney or the US is doing, but rather because you have over 2 billion people slowing rising in the middle class in Asia.
Uh yeah I'm pretty sure "Middle East insecurity" has a major impact on the futures market, what with the whole thing being speculation on the future (both near and long term) supply, and Middle East sources still being a huge portion of that supply. Prices jumped hugely after 9/11, again after the invasion of Iraq. Yes there has been an otherwise oscillating but upward trend due to general increasing consumption and lessening of reserves, and yes the market is much larger than just Iraq. To conclude that therefore nothing Bush or Cheney has done has affected the price of oil is completely illogical.
Re:Far too much power (Score:5, Interesting)
No it decreased the power of the other two branches, because they can only act with the approval of the Judicial Branch - not striking down a law is a tacit approval. To play devil's advocate - why can't the President serve as an arbitor of Constitutionality by rejecting the execution of a law?
Re:Those of us with something to hide... (Score:3, Interesting)
Isn't technology great?
Re:I forgot that spying is in the constitution (Score:3, Interesting)
What gets me about Slashdot is that it's full of people who have a giant fucking hardon for the Internet and "information wants to be free" and how all this technology changes everything and shifts paradigms and makes collaboration easier and technology transfer faster and all that good stuff, but are willfully ignorant about the major changes to the nature and scope of warfare and the battlefields on which it will be fought.
You can't have an Information Age without Information Warfare. You can't run around celebrating how the Internet makes borders obsolete without acknowledging that BORDERS ARE FUCKING OBSOLETE. You have a web-enabled cell phone? Congratulations! You're now a citizen of the world! And that means you enter the battlefield every time you make a call. Get used to it. It's the price you pay for Youtube and Blogger and Google and Wikipedia and Skype and Slashdot and Pirate Bay and all the rest of it. From here on, every smarty man and clever monkey is going to be waging war in your playground, and you whining about how they should all go back to 1950 and leave 2008 to you isn't going to make any difference at all.
Re:Those of us with something to hide... (Score:3, Interesting)
"They're all the same! I'll show you politics in America; here it is right here."
"I think the puppet on the right shares my beliefs."
"I think the puppet on the Left is more to my liking.... hey, wait a minute, there's one guy holdin' up both puppets!"
"SHUT UP! Go back to bed, America, your government is in control. Here's 'Love Connection', watch this and get fat and stupid."
Pay attention and what you'll find is that the kinds of issues on which Democrats and Republicans oppose each other have a common property. Note, this is different from the tactic of finding a different method to get the same result but justfied by a different reason. The common thread is that none of the solutions proposed by either party have the effect of significantly altering the balance of power between the people and the government. So, you have the appearance (real or otherwise) of a constant fluctuation in the balance of power between Democrats and Republicans and it seems very effective at distracting from the steady trend of shifting power towards the government. When a duopoly controls a market, they can corrupt, manipulate and effectively control that market to the detriment of everyone else. Why do we have this silly idea that a duopoly controlling political power is somehow less prone to using these tactics than a duopoly controlling money alone?
What I used to say is that you can vote for a Republican and they will expand the size and power of government at the expense of personal liberty or you could vote for a Democrat and they will expand the size and power of government at the expense economic liberty. Or I would say that you could vote Republican to expand government in the name of the stock market and economic freedom, or you could vote Democrat to expand government in the name of saving the poor people and the environment. Over time the given reasons change, of course; now it's Iraq etc. but there will always be an $ISSUE_OF_THE_DAY that can fit this formula. The result is that if what you want is less government size and less government authority, you're effectively disenfranchised. If I really wanted to live in an eventual police state, I would consider this a work of genius.
Re:In other words (Score:2, Interesting)
The government thinking it can tell you what you may or may not do with your own body is much more of a problem than mere eavesdropping.
The sovereignty of the state ends at my skin. If that's not understood, all else is moot.
Re:I forgot that spying is in the constitution (Score:2, Interesting)
Information wants to be free? Yes it does. But what does that matter when We The People aren't free from arbitrary exercise of power by our own government?
The USA has become the Evil Empire it fought in 1776. Worse, perhaps.