Supreme Court Disallows FISA Challenges 306
New submitter ThatsNotPudding writes "The U.S. Supreme court has rejected pleas to allow any challenges to the FISA wiretapping law unless someone can prove they've been harmed by it. 'The Foreign Intelligence Surveillance Act, or FISA, was originally designed to allow spying on the communications of foreign powers. But after the September 11 attacks, FISA courts were authorized to target a wide array of international communications, including communications between Americans and foreigners. ... In this case, the plaintiffs' groups said their communications were likely being scooped up by the government's expanded spying powers in violation of their constitutional rights. Today's decision, a 5-4 vote along ideological lines by the nation's highest court, definitively ends their case. In an opinion (PDF) by Justice Samuel Alito, the court ruled that these groups don't have the right to sue at all, because they can't prove they were being spied on.'"
Further coverage at SCOTUSblog.
FOIA, anyone? (Score:5, Insightful)
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Attack from a different direction. They'll probably shoot that down too, but play the game. Attack, attack, attack until something works.
Back in the 1960's and 1970's, that strategy worked.
Now?
With almost all the seats inside the system being occupied by people who are leaning towards the BIG BROTHER I am afraid the regular old-style "attacks" will become less and less effective
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Comment removed (Score:5, Interesting)
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Yeah, same damn treatment they gave Pigasus, the bastards.
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Even though I'm in no way a libertarian (I feel their beliefs would end up with a return to feudalism)
Exactly.
Pure Classical Liberalism is pretty much summed up by, We hold these truths to be self-evident that all people are created equal (under the law).
Left and right are best defined by the ways in which they oppose this ideal.
The left says, "I agree, but the power of the state must be used to promote this equality."
*Extreme* leftism has problems such as:
Everyone is equally poor.
Some pigs are more equal
Re:FOIA, anyone? (Score:5, Interesting)
You do realize that the founders of this country were 100% Libertarians themselves and that the All Men are Created Equal thing was one of their Libertarian slogans, right? Based to a great degree on the philosophy of John Locke. If you care about rights, human rights, individual rights, natural rights, whatever you want to call it then you are speaking the language of Libertarians. That's what Libertarians are all about: positing that all humans have certain inalienable rights that a government can neither give nor take away. That just exist as a natural consequence of being human.
The whole point of Libertarianism is that people should not be treated as if one is superior to the other. Creating a level playing field without aristocrats was the whole point. That's what human rights are all about. The reason why humans are considered to have rights, equal rights, to life, liberty and the pursuit of happiness was because some people realized that no one has the right to tell anyone else what to do, to force them to act against their will. That no man has the right to make another man his slave no matter how righteous he may think his goals are. Whether the noble goal is to "kill all the jews, gypsies and undesirables and create a pure race" or "soak the rich" or "Only corporations are full citizens."
That all humans must be treated as equals is the whole point of Libertarianism. Not to make everyone equal, but to not favor one man over another. Not ever. If you are under the illusion that Libertarians are close allies with Republicans, either of the new 'compromise is everything' variety or the old fashioned Tea Party ones you couldn't be more wrong. If anything I would say we are more like the old style Democrats, the ones who founded the ACLU in the first place.
When it comes to class warfare we just don't care. It's irrelevant to our way of thinking. A classless society is every bit as much an ideal for Libertarians as it is for Communists or Socialists and Democrats and Republicans don't really even have goals like that. Talking about philosophy at all isn't really speaking their langauge. Pragmatism is the only language they speak.
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Re:FOIA, anyone? (Score:5, Insightful)
The thing that no libertarian has been able to answer for me convinced me it would be nothing but some sort of neo-feudalism which is thus: If I have money, and no law to stop me, WTF is gonna keep me from just hiring my own goon squad and helping myself to your land, your women, or any other damned thing I want?
Not a libertarian, but I can answer that easily enough -- your situation is anarchy, not libertarianism. Libertarians believe in a strong police force and legal system to enforce private property rights and punish violence. It's one of the very few things a libertarian thinks government is necessary for.
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Penn Jillette made the same point to me when we were going back and forth on Twitter (always a productive medium). But it's a clumsy paradigm -- there are lots of ways to oppress and subjugate people that a police force and a legal system can't protect against. Protecting my body against foreign invaders or a guy with a knife isn't much good if I'm dying from pollution in the water or being thrown out of my house by a bank that doesn't actually own my property. And "private property rights"? Do we redistri
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So, as the saying goes, a libertarian is merely an anarchist who wants the police/army to protect them from their slaves?
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On a macro level, it wouldn't be long before chaos ensues, society collapses, and what actually takes form in the end is more akin to tribalism; one big, roaming group taking everything for itself and screw everyone else, too bad so sad. If you're a part of that group, it's great for you, but if you're not in that group, it's terrible.
No,no, no. What really happens is that Jim and his neighbors band together, creating a police (or military if there are enough bandits) force to protect their stuff and a set of rules what their collective police force can and can't do... lets call them laws. In other words, states emerge very quickly from anarchy and historically the states have pretty much always won out over the roving groups of bandits.
If voting didn't matter they wouldn't suppress it (Score:3)
The immense efforts that go into manipulating eligibility and registration, understaffing polling places in poor areas, and historically even outright violence prove that the powers that be are afraid of voters.
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It mostly works for 'them'. Repeated variations of CISPA, etc. Until something sticks.
All we can do is but try.
It's not big brother (Score:2)
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Absurd.
The insignificant fleas that ride on the back of the state are just that: tiny. To understand reality, one must understand its rules, the relevant one to this discussion being the axiom of identity. Blaming those with no armies, no courts, no bombs, no police, no jails, and no permission from the ruled is a sort of blindness that can only be the result of a lifetime of propaganda and cultural pressure. This is big brother in its full glory. Not in plain view and direct, but so infused with society th
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Most college freshmen spend their first winter break catching up with friends and family, and trying to get laid at various Christmas/New Year's parties.
Instead, you spent yours reading Atlas Shrugged. What a waste.
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how about this.
Fuck you SCOTUS.
Fuck you Politicians.
Fuck you Republicans.
Fuck you Democrats.
Fuck you Mr President.
Fuck you Congress Critters.
and
FUCK YOU public employee unions. (Union vs Private companies is fair.)
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Attack from a different direction. They'll probably shoot that down too, but play the game. Attack, attack, attack until something works.
While this is a good idea, remember the exciting time we live in. The current administration is blocking challenges to FOIA the drone-related legal memos, because officially, they can neither admit nor deny that the drone program exists (secrecy didn't stop Obama from bragging about the program's success though). And the courts side with the government instead of laughing at them!
Soon, all FOIA/court challenges will be answered by "We can neither admit nor deny that we are the Government. Admitting that w
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If enough juries take cases involving illegal wiretaps and nullify the holy living shit out of FISA, it'll be such a spotty legal landscape (nullification is restricted to the jurisdiction the jury ruled in) that the TLA's won't be able to use it without heavy liability.
What are you smoking, exactly?? Who the hell modded you up?
Jury nullification carries absolutely no weight in any other case, no matter how closely related. There is no precedent set. There is no way for a defense lawyer to argue it. All it does is help set the current defendant free, nothing more. (Yes, IANAL, but I am still fairly certain about this)
Nor does FISA court have a jury, being a secret court and all. It is more of a judge panel.
Also, I hear that if you mention that you are familiar with the
Re:FOIA, anyone? (Score:5, Informative)
One more point, not directed at you -- everything you said was right -- but at the jury nullification [fantasy] crowd.
This case never got to the trial phase. The case the SC decided was on a pre-trial procedural issue, i.e., do the parties who brought the suit have standing such that they are harmed parties who have the right to sue the government. The SC decided they do not have standing because they don't conclusively know they were spied upon, and that as a result: there will NOT be a trial. If there is no trial, there is no jury, and thus no chance for jury nullification.
At this point, the only way these abuses will ever be addressed, is if we get a whistleblower. Then harmed individuals would have standing at least, but before those conclusively harmed parties get to a jury, there's the State Secrets Doctrine (rooted in Air Force coverup of negligence [thisamericanlife.org]) to get through, and the Federal Courts fall all over themselves trying to suck the DOJ's dick on that issue. Assuming the extraordinarily unlikely event that one is a conclusively harmed party, finds out about it, AND the State Secrets Doctrine isn't abused to trump your right to trial -- after that, maybe you'd get to present a case to a jury. More probable however, is that the Feds would just retroactively immunize whoever, like they did with AT&T.
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Which helps explain why they are going all out to crush Bradley Manning. Not just convict him, but totally destroy his life. This will set an example to potential whistleblowers - your life will effectively be over.
Re:FOIA, anyone? (Score:5, Interesting)
I asked if a not guilty verdict could be reached on the basis that the relevant law was immoral, unconstitutional, or would otherwise result in an unjust verdict.
Short answer: No.
(and this is where this becomes a rant...) So, this is the point where I get punted. The Fucking Crack Whore sitting next to me in the jury box made it deeper into the jury selection process than I. I was one of the few people in the room who appeared even remotely interested in the proceedings. Now I understand why so many fucking cases get plea bargained. I wouldn't want to put my fate in the hands a few semi-literate rednecks and a half dozen WWII vets. The first round of juror culling eliminated just about everyone that I would have wanted on a jury for me.
So, what am I supposed to do? Not answer questions like that even when asked?
Peter
Re:FOIA, anyone? (Score:4, Interesting)
I asked if a not guilty verdict could be reached on the basis that the relevant law was immoral, unconstitutional, or would otherwise result in an unjust verdict.
Short answer: No.
Long Answer: If they said no, they lied to you (which, incidentally IS legal for them to do). There are no requirements placed on the jury that govern the validity of a verdict. The jurors can rule not guilty because the sky is blue, if they are so inclined. The jury can use any basis they want to reach a verdict. They cannot be subject to penalty, and a not guilty verdict pretty much cannot be overturned (depending on how the jursidiction in question defines double jeopardy).
Of course, if you point out the real state of the actual law you get punted yes. There's some logic to it besides pure state fascism (cops, relatives of cops, people associated w/ the legal profession etc. all get booted pretty much right off too), but it is a fucked up system.
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Jurors are "obliged" to reach a verdict based upon the law as it stands.
Correct, and the Constitution is the law of the land. Jurors are obliged to acquit when the charges are unconstitutional.
It's not what you know, it's what you can prove (Score:2, Interesting)
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The context of that quote and the character [wikiquote.org] that spoke it says quite a bit about the ethics of our courts.
The case was badly constructed (Score:5, Informative)
Rather then trying to sue the government they should have raised a constitutional objection to the law itself citing that it violated our right to due process as regards searches and seizure.
Had they done that, the courts likely would have sided with them.
It's important to remember that the courts are VERY concerned with protocol. Everything has to be worded and argued in a specific way or it will be dismissed like a syntax error into a compiler. Wrong wording or angle and they'll just say "wrong next case".
Make it a forth amendment challenge however and you've got a different story.
Re:The case was badly constructed (Score:5, Insightful)
You can't just sue over the constitutionality of a law, you still need to have standing which based on the result of this case the majority believes they lack.
Re:The case was badly constructed (Score:5, Interesting)
Big Brother has a long memory. And if you come to its attention, they might not find anything on you now, but that doesn't mean they won't find something to qualify you for a never ending vacation at Gitmo sometime in the future. Recently, the government came out with the revelation that the largest threat to national security is (wait for it!!!)...
Veterans.
Think about it a moment. Who else has the training and experience in toppling a government by force of arms? Who else, especially the older veterans, would tend to view the current government situation with alarm?
Re:The case was badly constructed (Score:4, Interesting)
Toppling a nominally civilized government by force of arms is stupid. Who should we shoot? Our local congressman? Our neighborhood cop?
A smarter way is for us to unite in disobedience to clearly unconsitutional laws, and drum up media sympathy.
The last time we threw out a government (our independence from Britain), was a bloody drawn-out affair in which our people were fighting Britain and each other, neither the loyalists nor insurrectionists had an objectively clear moral high ground, and were it not for some fortuitous flukes of happenstance, England's victory was assured.
India's independence was a bloody drawn-out affair in which one side was the clear aggressor, the people didn't kill each other, and England's ouster was inevitable - just a matter of time.
Gandhi's way is foolproof against any government that wants to be seen as civilized. The way of the gun is a crapshoot, where we kill our brothers while the government runs the casino.
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The way you do it is you elect a Congress that is willing to enforce the law, and you get them to impeach the judges who won't enforce the law.
OK. So it's the civil disobedience thing, then.
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And what if the government doesn't care about being seen as civilized?
Comment removed (Score:5, Insightful)
Re:The case was badly constructed (Score:5, Funny)
Oh, if only they had read your comment before sending their lawyers to the Supreme Court. It is unfortunate that they picked lawyers who didn't know anything about proper protocol. Victory would have been assured if they had picked a couple of Slashdotters at random instead.
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Courts won't take on such "advisory" cases. You need to prove that your rights have been violated in order to have standing to bring such a case. You can't just bring a case to a court and get a law struck down without such injury. I think it's a pretty terrible principle, especially since courts almost always defer to the government when it comes to the secrecy of evidence, and therefore its inadmissibility, making it impossible to prove any sort of injury in a court.
Re:The case was badly constructed (Score:4, Insightful)
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The Constitution is pretty clear that "unreasonable searches" cannot be performed "without probable cause". We can deduce the government is intercepting every electronic communication through various leaks [wikipedia.org] and investigations [businessinsider.com]. I think any average American would agree that these searches are unreasonable and lack probable cause. Certainly there would have been no American independence if King George had this technology.
As for personal harm, the mere knowledge that the government is monitoring everyone's comm
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The court ruled that they have no standing. No standing means it doesn't matter what your argument is, the court will not listen.
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Had they done that, the courts likely would have sided with them.
Keep telling yourself that if it makes it easier for you to sleep at night.
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Keep telling yourself that if it makes it easier for you to sleep at night.
But the Supreme Court will protect us from the Federal Government because it's ... oh, wait.
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Rather then trying to sue the government they should have raised a constitutional objection to the law itself citing that it violated our right to due process as regards searches and seizure.
Had they done that, the courts likely would have sided with them.
It's important to remember that the courts are VERY concerned with protocol. Everything has to be worded and argued in a specific way or it will be dismissed like a syntax error into a compiler. Wrong wording or angle and they'll just say "wrong next case".
Make it a forth amendment challenge however and you've got a different story.
No, they would have rejected it on the exact same basis: "Prove to us that your rights, in particular, were violated."
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They pretty much always do that. Most cases are declined from the Supreme Court unless actual harm is shown.
It's a pain, we've faced even in Pennsylvania where towns have passed illegal laws, but not enforced them. So we are unable to get the courts to strike them down. They just dismiss cases due to lack of harm.
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Re:The case was badly constructed (Score:4, Insightful)
Repubmocrat Tyranny
"Today's decision, a 5-4 vote along ideological lines by the nation's highest court, definitively ends their case."
"In an opinion by Justice Samuel Alito ... The majority opinion was joined by Justices Antonin Scalia, Clarence Thomas, and Anthony Kennedy, as well as Chief Justice John Roberts ... [Breyer] is joined in a dissent by Justices Ruth Ginsburg, Sonia Sotomayor, and Elena Kagan."
False equivalence is false.
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Thanks again Bush-the-Lesser Administration!
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Recap (Score:5, Funny)
Gov: We spy on Americans in secret.
Me: Stop spying on me
Gov: You can't prove that we did
Me: *middle finger*
Does that about cover it?
Re:Recap (Score:5, Insightful)
I am afraid you got the last line wrong.
Gov: We spy on Americans in secret.
Me: Stop spying on me
Gov: You can't prove that we did
Gov: *middle finger*
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Gov: *middle finger*
You're referring to Justice Scalia, I assume?
http://www.cbsnews.com/2100-280_162-1444503.html [cbsnews.com]
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Gov: #$@%$#
Whistle Blower: Gov's spying on you
Press: Stop spying on us!
Gov: $#%@*
SCOTUS: Fuck you, prove a negative
Gov to Whistle Blower: Off to be loved in Guantanamo
SCOTUS: Fuck you
Can prove it? Too bad (Score:2, Insightful)
I guess if you found yourself in Gitmo you could prove you were harmed.
If you could ever get in front of a judge.
Oh well.
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I guess if you found yourself in Gitmo you could prove you were harmed.
Even if you find yourself in Gitmo (which proves harm), would you also have to prove that you were illegally spied on by a secret court?
Are FISA proceedings are made public after you are arrested? Or is all evidence you could possible have would by definition be illegal (and perhaps completely inadmissible, even if you have it).
Sets up the first test case nicely (Score:5, Insightful)
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Re:Sets up the first test case nicely (Score:5, Insightful)
The names are changing, but the plan hasn't. and it isn't party related. The Dems are Reps both follow the plan together. Nothing can stop it now, the people seem happy with the plan and the results.
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It's more of an un-coordinated play to take away our rights.
And it's working very well. Pretty sure both sides of the aisle would agree with that.
Re:Sets up the first test case nicely (Score:4, Insightful)
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The problem is that the accumulated incompetence, greediness, and general disregard for ethics among politicians creates a situation where rights are stripped away.
I would say that and an illogical, fearful populace is creating this mess.
Should have sued under EU-US Data Treaty (Score:2, Interesting)
International Treaties have a force of law higher than FISA, and are subject to US Senate confirmation as a result.
Use that, all you need are EU citizens who reside in the US who have had their data slurped up, contrary to EU law, which is forbidden by the EU-US Data Treaty.
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> International Treaties have a force of law higher than FISA
No they don't. They have *zero* legal weight without enabling legislation (passed by the House & Senate, then signed by the President or veto-overridden).
Fortunately... (Score:2)
What a dilemma (Score:2)
On one hand, everyone being spied on means everyone has standing (but since it's a secret program noone can prove it).
On the other hand, allowing discovery to prove standing allows for fishing expeditions of the type that IP holders would love to use to catch every act of copyright infringement (which judges are now getting wise to).
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It's worse than that. If everyone were being spied on, then everyone would have standing. Only lots of people are being spied on. But no one can prove which people are actually being spied on. So lots of people being spied on, but no one has legal standing to try to stop it.
Dissenters were all progressives (Score:5, Insightful)
Hopefully the President will still get the chance to appoint more progressives to the Supreme Court to protect us from his policies.
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The two most likely to retire are generally considered liberal.
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You forgot your sarcasm tag. Just in case you were actually serious.
https://www.wsws.org/en/articles/2012/07/tapp-j10.html [wsws.org]
http://www.dailytech.com/Report+Obama+Administration+to+Spy+on+Citizens+Online+to+Fight+Terror/article19734.htm [dailytech.com]
http://www.huffingtonpost.com/2012/09/28/warrantless-electronic-surveillance-obama_n_1924508.html [huffingtonpost.com]
http://reason.com/archives/2012/10/03/warrantless-spying-skyrockets-under-obam [reason.com]
Warrant-less spying has surged under the Obama administration. From what I understand he has maintaine
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Read that comment again:
Hopefully the President will still get the chance to appoint more progressives to the Supreme Court to protect us from his policies.
Emphasis added.
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Wasn't it this President's Justice Department arguing that the plaintiffs had no standing?
Doesn't sound like he's really on your side here.
Great coverage & background here (Score:2)
Great coverage & background in the included link.
Glenn Greenwald should be required reading in High School these days.
http://www.guardian.co.uk/commentisfree/2013/feb/26/supreme-court-eavesdropping-law-doj-argument [guardian.co.uk]
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Re:When the chips are down... (Score:4, Insightful)
In america is it. And perhaps sweden now.
Not so for the REST OF THE CIVILIZED WORLD. Note america is slipping from civilized to simply a bunch of backwaters with hi tech.
Stop. Think.
Wait a little longer.
OK. Explain in small words for me what's so special about where you live vs. the US that makes it impossible to happen there.
Is it your Constitution or other founding document or your principles of rule of law?
Is it because your people have a history of defending liberty and justice?
Is it because your country is the exception to the rule? It can't happen here?
Because we had that stuff in the US. And it happened here.
Do you want to know the secret to letting it happen to you? I'll tell you. Just go on spouting off about how special you are and how dumb someone else is and how it'll never happen to you because you wouldn't let that happen there like that other stupid country with those stupid, arrogant people did.
Because, ya. We had all that, too.
But don't worry. Maybe everything will be fine. I didn't mean to alarm you.
Damned if you do... (Score:2)
The Supreme Court that says you can't sue if you can't prove you've been spied on and and FISA says you can't find out.
Danger, Danger, Will Robinson! (Score:2)
Anything that abridges our fundamental and constitutionally guaranteed freedoms automatically injures us all. Aside from the danger of disproving the various fictional rights we generally assume we have - It polarizes the whackjobs, it makes the sheep less complacent, it makes us hate the government instead of merely having a healthy distrust of it. Hell, you've all thoroughly proven yourself completely incompetent over the past few years, why not make yourselves outright enemies of the people
Apparently SCOTUS have become realists (Score:2)
instead of idealists.
Totally nuts.
Tresspassing is legal (Score:5, Insightful)
Example. A neighbor sneaks in to Judge Alito's unlocked home. Judge cannot prosecute the neighbor's trespass, because Judge Alito cannot prove the neighbor had trespassed because it is legal to trespass secretly. Even though the neighbor has records to each and every trespassing, the records seem to be off limits as well.
That is effed up.
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What our fine Judge Alito said is it is ok to trespass, just don't get caught. Ok, it is a bit more complicated than that.
I swear -- the only time those SCOTUS judges understand anything is when IT APPLIES TO THEM. During the "is it illegal to attach a GPS to your car without a warrant", they basically killed it after they were told that a supreme court judge could also be subject to a GPS device being attached to their car (without a warrant)
I guess they don't think FISA would ever approve a warrant against them in secret...
This leaky govt, no problem at all (Score:3)
Look on the bright side, with all the leakers and whistleblowers in the government and the lousy internet security of most govt offices, anybody who is actually being spied on probably won't have to wait too long before the evidence lands in his lap.
Three cheers for incompetent bureaucrats!
another step towards tyrany (Score:2, Insightful)
the USA is utterly doomed.
It is in its death spiral.
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Re:another step towards tyrany (Score:4, Insightful)
Dude.
America has no "Left".
FISA? What's all the fuss?! (Score:2)
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both great canidates on their own. both open source. (Do you trust closed source encryption?)
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there is also twofish and serpent, both two AES finalists not chosen.
It wouldn't matter what we use with ubiquitous crypto (used by everyone by default, I mean). Not even the NSA has enough oomph to crack *everything*, if everyone used it for *everything.*
both great [candidates] on their own. both open source. (Do you trust closed source encryption?)
No, but that wouldn't matter for the same reason. NSA backdoors into MS or Apple crypto? I don't much fsckin' care. Don't use that !@#$.
Add in Man In The Middle stuff (AT&T wiretapping, FISA, ...) and all that, and you'll still have a lot to do before you can really get off their radar and go dark. They're not stup
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Every conservative on the court supports unreviewable police power and opposes civil liberties: is anyone surprised?
No one is surprised, and that's the worst part. Despite 40+ years of conservatives claiming to be great lovers and defenders of the constitution, their track record has been exactly the opposite.
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Well if you go through the wiretapping, Guantanamo, and surveillance-without-warrant cases of the past 10 years, I think you will find a pattern that spans more than one case.
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And more than just one administration, or even side of the aisle.
Re:any libertarians left on the GOP ship? (Score:4, Insightful)
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Also bad! But as far as I can tell, the GOP judges are actually more willing to give him that carte blanche than the Democratic judges are. Therefore, when it comes to judges, the existence of GOP appointees is to be discouraged.
I would be happy to have my mind changed by some conservative judges actually voting to enforce constraints on the executive branch's police powers.
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Overnight everything becomes in the interest of Essential National Security.
Even what you had for breakfast - Food Security.
Can't let the terrorists know in case they try to poison the worlds supply of sugar.
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"Happy" and "angry" are not antonyms.
We are capable of multiple states of mind and we look best in royal blue.
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He scared them because he had information on them doing illegal things, and threatened to release it. Not because of the pea shooters.
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It's not the call monitoring that's the problem.
It's that there's no limits and no consequences to monitoring because of 'national security'.
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Yes, they're invading people's privacy, but they do target Foreign calls.
It doesn't stop there.
There are risks and I'm fine with the US saying "Hey, we'll be watching your international calls."
Because, after all, if you have nothing to hide, what do you have to fear?