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Government Seeks Dismissal of Spy Suit
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).
Court: You were spying and that's a very bad thing.
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.
I hate printers.
So, before, it was necessary and legal and there was absolutely nothing wrong with it and whomever leaked the information on it was a traitor.
... now.
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.
In this type of case the Judicial Branch doesn't really have much teeth. While they can certainly punish individual members of the Executive Branch acting on their own, they can't punish those acting directly under the orders of the President. If they did the President would just pardon them and that would be the end of that. The only way that you can punish the President is to impeach him and then find him guilty of a crime and remove him from office. But Congress certainly doesn't have the votes for that.
For these reasons, this case is dead. Anything else will just be a waste of tax dollars.
being taken to court after you beat wife, but then claim the court case should be thrown out because you haven't beaten her since the court case started.
It's not done under the FISA program, he's trying to confuse the judge. What they did was they got 1 FISA judge to declare the whole program legal, not case by case with probable cause, not a FISA court ruling, a ruling of a single FISA judge.
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
The feds argue in their petition that this precedent does not apply to them.
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.
I want a new quote. One that won't spill. One that don't cost too much. Or come in a pill.
So you say that because the republican part of your olichargy holds more than 1 third of the seat (one of them always will in your two party system) the president can order the gouvernment all illegal things he likes, because congress could never impeach him.
So how are your militias going? It is time to feed the tree of freedom, and I nominate every congrescritter that opposes impeaching BabyBush.
This space is intentionally staring blankly at you
Really. If I ever get caught in, say, a murder, I just stop killing anyone and I'm free.
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.
Assorted stuff I do sometimes: Lemuria.org
In BushWorld, only serial killers are murderers. Mass murderers who go straight are OK.
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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make install -not war
would this mean that all file sharing would be fine, as long you delete your file sharing software and promise to not do it anymore if they try to prosecute you?
This logic is the essence of the Bush Era. The theory is entirely devoted to power. All that matters in life is to whom you defer in power. If Bush acknowledges that a court, a Congress, or a TV audience has any power over him, that's the end of the issue. Only after an apocalyptic fight with every resource possible, including illegal means, torture, spies, assassinations, exposing covert agents, bribes, anything to attack the force asserting power over them. Then, when it looks like the new power will win, they try to bargain for changes to allow them to do what they were doing in exchange for admitting they used to do it, then claim "we were right all along". If they still lose, they take whatever lumps are offered (until now, practically nothing except perhaps purely symbolic, from their Republican Congress), then just do it anyway in secret - or through proxies, either corporate or overseas.
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.
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. It works only while the Constitution still has more power than the tyrants attacking it.
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make install -not war
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.
You can't legislate goodness. Let each to his own destiny, by will of his freely made choices.
Yeah, even without watching the news I know that the Democrats must've won an election somewhere, because all of a sudden I'm seeing that Jefferson "tree of liberty" patriot quote again. Odd that imprisonment without trial+torture+warrantless surveillance=absolute indifference, but now all of a sudden sweet liberty is being gang-raped by a D congress. I know that isn't your point and you were being satirical. just got me thinking about something I haven't seen since Clinton was in office--Republicans saying that government is dangerous to freedom. I know they're lying and they don't actually believe it, but it's funny to hear it again all of a sudden. Brings me back to my days of furiously reading James Bovard and thinking that Randy Weaver and Waco had convinced the Republicans that you shouldn't trust government. Yeah, I was stupid.
Read the government submission in the story. Section D.
....'
'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 empowered to grant, let alone an individual judge. It can only grant individual warrants in the circumstances above.
I'm not aware of any power under which a FISA judge can issue a blanket power like that.
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.
I love it when accountability works -- you know, checks and balances, blind justice, and so on and so forth.
Do as I say not as I do should be the new motto on the money.
These stories are free but worth money.
The U.S. government is more corrupt now than it has ever been.
I wrote a summary of the corruption: George W. Bush comedy and tragedy. 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.
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U.S. government violence in Iraq causes more violence, not peaceful democracy. Violence breeds violence.
> Using it as an excuse for ex post facto warrants and attempts at all encompssing listening systems should not be tolerated.
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.
then they should insist on the chance to argue it before the Justices.
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.
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.
"You can't take me to court, I did all those things way back when I was President! I'm not President anymore!" - George W. Bush, Feb. 2009.
"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!" - OJ Simpson
"Oh, no, no, I stopped mailing out bombs a while ago, thanks anyway! Oh, I have a present for you. Go ahead, open it!" -Theodore Kaczynski
I certainly hope that the judges hearing the appeal (and the Supremes when it gets to them) have the intestinal fortitude to assert their authority. The problem with this whole case is that the Bush administraation does whatever it wants regardless of the law. A President who had any respect for the Constitution and the rule of law would never have started this program in the first place. The fact that Bush and his co-conspirators have decided to stop this program tells me that they have simply started another one somewhere within the government's huge espionage sector. They are indeed trying to remove themselves and their actions from scrutiny so that they can carry on as they want over in the dark corners of the room.
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. 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
Impeach Barack Obama for violating the Constitutional requirement to be a "natural born" citizen to hold the office of P
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 committing this crime and breaking laws, so therefore you should drop all activity to prevent us from doing so in the future and making us pay the legal penalties for our lawbreaking!!! Hmmmm......is there any half-wit or twit out there or would dare argue that this is even remotely related to jurisprudence????? [Be forewarned, I am a descendant of the Dutch-American reporter who first coined the term shyster to describe corrupt politicians and lawyers. (Shyster: a nickname for individuals in NYC who went behind the horse-drawn carriages and cleaned up the horse poop.)]
An interesting mention about that horrendous FBI op against Reverent King --- as actions have consequences, since those criminal FBI types were never prosecuted (probably promoted like Frasca and Maltbie) I wonder how many other bad types they brought into the Bureau??? Traitors like Hanssen? Criminals who sold out the citizenry and were responsible for murders by supplying criminal organizations with sensitive and confidential data? Those responsible for the attempt extermination of the Weaver family at Ruby Ridge??? (No, I don't hold with such beliefs, but nor does it give certain factions within the US government the right to assassinate members of the electorate.)
And did those bad FBI types eventually bring into the Bureau those clowns who ignored all those detailed tips preceding the attacks of 9/11/01.....
I am so tired of the current administration running roughshod over the rights of citizens and non-citizens alike. The Executive Branch seems at every turn to believe that the law and indeed even the constitution do not apply to them! I suspect that if we were to harness the energy of Jefferson, Franklin, and the other signers of the constitution spinning in their graves we could once and for all solve the energy crisis!
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.
Exactly - FISA was designed not to harass or reduce the amount of wiretapping, but rather to act as more of a recordkeeper. Our intelligence services were very skilled at not following the rule of law and instead applying thier own justification for doing things as was convenient at the time.
If you or I do this at a job, you have people who oversee you and tell you how to stay in compliance. FISA allows you to get the warrant after the fact to give time-sensitive matters precedent over procedure.
Bush wanted to stay away from FISA because he was doing things that are illegal in his scope of info gathering. If he had actual evidence of wrongdoing, or a true suspicion that could have been substantiated by FISA (which is so broad as to be ridiculous compared to what real police go through for warrants), then he could get every single warrant he wanted.
I think FISA has rarely (if ever?) denied a single warrant.
They are the recordkeeper, and their job is to record who gets tapped, why you think they need to be tapped, and how you are going to wiretap them. The neo-con line was always that laws got in the way of necessary action. Oversight gets in the way of criminal behavior - that's why Walmart has cameras watching the store. The cameras do not impede my shopping in any way, unless I also am stealing or invading Target without a good reason.