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."

Comments

Fir Pos?

[Dunbal]

Enjoy your dictatorship, America. Bush and his cronies can do no wrong, and can block and dismiss any attempt to see JUST HOW FAR they have gone. At least until after the next election. If there IS an election. You guys still have them, right?

Re:Fir Pos?

[Archangel Michael]

I'm a libertarian and a Libertarian. There are SERIOUS irregularities caused by the two party system in general. The fact that every post primary debate only has TWO parties represented and doesn't include ANY of the viable third party candidates is of great concern with me (Ross Perot not withstanding).

Want to improve all the issues pointed out in the article, stop having a two party system. However, I realize that having more than two options to vote for confuses most Americans.

Lastly, I'd like a "None of the Above" option on all elections. And looking at the approval ratings of congress, and the president, I think NOTA would win most elections.

Re:Fir Pos?

[fyngyrz]

Enjoy your dictatorship, America.

This really isn't anything to do with Bush, though it is his actions we are concerned with; it is a shortcoming in the legal system, a loophole that arises because of the way lawsuits are qualified. The president has violated his oath to uphold the constitution; via US telecomm laws, wiretapping is linked inextricably to fourth amendment citizen immunity to unreasonable search; the president swears to uphold and defend the constitution, and he has not doe so, in fact a strong case can be made that he has directly violated it. There is a remedy for this. Recourse is via the congress, who should impeach and convict him for this violation of the presidential oath, a "high crime" if there ever was one.

The problem that we actually face is a congress that has absolutely no spine and is so corrupt itself that they find it perfectly natural to violate the constitution. After all, they have done it many times by producing blatantly unconstitutional laws. Examples abound: ex post facto gun laws, suppression of speech in public areas (most recently, the ruling on that kid's Jesus / Bong banner), the witless inversion of the commerce clause, violation of the right to keep and bear arms and so on.

We can't fix any of this because of the entrenched two party system, and because the legislators themselves are corrupt (with the exception of one or two.)

Re:Fir Pos?

[The Angry Mick]

We can't fix any of this because of the entrenched two party system, and because the legislators themselves are corrupt (with the exception of one or two.)

I think I may have posted this idea once before, so apologies if its familiar, but what about a movement to un-elect the incumbents?

Next time you vote, vote against anyone currently holding office. Keep your party affiliations, if you must, just make sure the old blood is booted out the door. Make it widely known that your reasons for doing so are to refresh the state of the union.

Don't worry about the ones going home; they'll make more money as lobbyists.

Re:Fir Pos?

[wsherman]

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

From an article in the New York Times:

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.

Re:Fir Pos?

[fyngyrz]

That's all fine, but you have to understand what happened here. They didn't say that the action (wiretapping) was legal; they just said - and I think, correctly - that the complaining party couldn't show that it had been directly affected, and so they had no standing to sue. Lawsuits require that you show that harm has been done to you - the party with the objection - in order to proceed. Without standing, this was stopped. Lawsuit is probably the wrong remedy for this issue unless the party objecting knows they have been tapped; the right remedy is impeachment, because what we have here is a known, admitted crime committed by a sitting, and still-sitting, president, and no knowledge, at least that I am aware of, as to who in particular was harmed.

What I was saying is that the problem exists, a remedy is encoded into the constitution to deal with such problems, but the body entrusted with meting out that remedy has not acted, and that is the real problem, not the issue of standing being required to sue. I'm not much in favor of suits in the first place, I'd *really* object to suits without standing. That'd mean if you cheated your business partner, I could sue you, even though I'm not your business partner. That's just making a bad thing worse.

Re:Fir Pos?

[aplusjimages]

The fact that every post primary debate only has TWO parties represented and doesn't include ANY of the viable third party candidates is of great concern . . .

I believe the third parties were at the 2004 debates, so lets not make it seem like they don't participate. Weren't the Green party and Libertarian party candidates in the back of a police car outside the building holding the debates. The two parties have locked all the other parties out. Welcome to America says the sign.

Re:Fir Pos?

[Lockejaw]

Actually, I've heard "None of the Above" is a pretty popular choice in America these days. Unfortunately, even when over half the people choose None of the Above, he never shows up to take office, and the runner-up wins.

Re:Fir Pos?

[Whammy666]

This case is different than most civil cases. In this case, the injured party is the American public at large. The lower court has already ruled that the govt's action was a violation of the 1st and 4th amendments, plus a violation of FISA which harms everyone even if they were not an explicit target of the illegal wiretaps.

What I'd like to know is how is one supposed to challenge a blatantly unconstitutional program when the govt has a monopoly on the evidence needed to show individual harm.

Tough ground

[mulvane]

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

[andy314159pi]

You know a good lawyer will tell you that in the end the truth will prevail, as corny as it sounds. This irrational decision will stand until the paperwork is filled for higher appeal. I am not sure where the appeal process will take them and I am sure there are lawyers on this board who will tell us, but I still have faith in the process even though it seems to be falling short right now.

Re:Tough ground

[The Angry Mick]

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]

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.

Re:Tough ground

[jimstapleton]

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.

Re:Tough ground

[Anonymous Coward]

Ok . . my head just exploded. Clean up in thread 199255. And bring a bucket. It's another logic lobotomy.

Re:Tough ground

[Anonymous Coward]

One More:

According to the judgement above, you'd also be creating a list of people who now have the right to sue you.

As it stands, unless they break the "State Secrets" limitation, the government is protected from being held accountable.

In THIS government, accountability is the very last thing they want applied to themselves. As such, I think this, more than those other two arguments, is why they'll never release such a list.

-AC

Re:Tough ground

[Anonymous Coward]

> Why is the Government so concerned about keeping the surveillance list secret? Its not like they care about justice anyway since so many folks are being held in Guantanamo without formal charges. Just treat all the suspects as enemy combatants and be done with it. Just treat all the suspects as enemy combatants and be done with it.

(I kinda wish they would. At least it'd get it out in the open. But to answer your question as to why -- if it were out in the open, if it were made legal, then they couldn't keep doing it. Catch-22 applies to them as well as us.)

"No reason," wailed the old woman. "No reason."

"What right did they have?"

"Catch-22."

"What?" Yossarian froze in his tracks with fear and alarm and felt hiw while body begin to tingle. "What did you say?"

"Catch-22," the old woman repeated, rocking her head up and down. "Catch-22. Catch-22 says they have a right to do anything we can't stop them from doing."

"What the hell are you talking about?" Yossarian shouted at her in bewildered, furious protest. "How did you know it was Catch-22? Who the hell told you it was Catch-22?"

"The soldiers with the hard white hats a clubs. The girls were crying. 'Did we do anything wrong?' they said. The men said no and pushed them away out the door with the ends of their clubs. 'Then why are you chasing us out?' the girls said. 'Catch-22,' the men said. 'What right do you have?' the girls said. 'Catch-22,' the men said. All they kept saying was 'Catch-22, Catch-22.' What does it mean, Catch-22? What is Catch-22?"

"Didn't they show it to you?" Yossarian demanded, stamping about in ager and distress. "Didn't you even make them read it?"

"They don't have to show us Catch-22," the old woman answered. "The law says they don't have to."

"What law says they don't have to?"

"Catch-22."

Re:Tough ground

[Dare nMc]

I've nothing against the tapping in and of itself,

as you say, snooping on just my phone calls, no whoop. However they have the computer power to snoop on everyones calls simultaneously, aggregate the data, look for patterns, and it is so secret they 1) can't document abuses 2) can't discipline anyone who abuses it.

eg: if 1000 people call in to the brokers to sell their Haliburton stock at the same time, a flag might instantly pop up on the VP's computer, and automatically sell his stock first. Knowing one persons calls to trade a stock, meaningless, knowing a 1000 insiders did simultaneously, priceless.

Japan was accused of doing stuff like this back in the 70's. eg: The phone Company would automatically take fax's sent or received out of country, and copy them to any interested company's, "in the nations best interest". So if a American executive in japan faxed out a private bid for a contract to his home office, that fax would get to the Japanese business also bidding...

You don't think it will affects you? Business knowing they can't do business inside the US through phones, email, etc. Because they can't trust the privacy of our government...

Re:Tough ground

[Arterion]

As long as you can afford to continue litigating for the truth, you'll probably eventually get it. Oh yes. That's absolutely a process I have faith in. :-P

Re:Tough ground

[PopeRatzo]

I am not sure where the appeal process will take them

I'll tell you exactly where the appeals process will take them: to a Supreme Court populated by authoritarian goons like Antonin Scalia and Clarence Thomas who have never met a boss they didn't love. It's so funny that the Court appointments by Bush were touted to "end the reign of activist judges" by escalating justices who have giddily overturned precedent and settled law in a manner that's more "activist" than anything we've seen since the Warren Court.

We've had them throw out the appeal by someone who, told by a judge he had 17 days to file his motion, filed his motion in 16 days, only to find out that the bureaucratic rule was 14 days (the judge took a weekend into account). If this doesn't violate the spirit of the law, I don't know what would. We've seen a new strategy in cases brought by US citizens that, where instead of saying the facts or the law were against them, the judges claimed they "didn't have standing to bring suit". What does it tell you when the citizens of a nation don't have standing to bring suit against their own government. I wonder if Clarence Thomas has ever read the Declaration of Independence as closely as he read the back cover of the latest XXX DVD by Long Dong Silver.

I've been strongly critical of the Bush administration for several years, but I've never before believed that impeachment was the best approach. That has changed. George W. Bush and Dick Cheney have clearly decided that they're going to push the envelope of legality and morality as far as they possibly can, assuming that as long as they don't get a blowjob in the Oval Office, they won't be touched. I'm not sure America can move forward until these men are brought before Congress under articles of impeachment, and Americans are going to remain angrily divided until the 68 percent of us who believe this administration has been harmful to this country get some answers. It appears that more than half of Americans agree with me that impeachment is warranted, and it's time for that half to contact their congressmen with the same energy with which they defeated the Immigration Bill. Twelve million illegal immigrants can't begin to do the kind of damage to this great nation that the two men in the White House have perpetrated. Whether they are convicted and removed from office is to be determined by Congress, but it's time for them to answer for their actions.

This is not EFF -vs- AT&T

[MobyDisk]

Last paragraph of the article:

The appeals court decision does not affect another lawsuit still pending in California, in which the Electronic Frontier Foundation has sued AT&T Inc., which allegedly participated in the NSA program. If this ruling makes you angry, support the EFF!

Re:This is not EFF -vs- AT&T

[Bomarc]

Actually, if they go through their records -- they might be able to determine if they are affected... http://www.aclu.org/freespeech/protest/30298prs200 70628.html As anyone been denied enterence to a Bush actvity after sending email or talking on the phone?

Our era's reverse catch 22.

[RyanFenton]

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

Re:Our era's reverse catch 22.

[Anonymous Coward]

"There was only one catch and that was Catch-22, which specified that a concern for one's privacy in the face of surveillance that was real and immediate was the process of a pro-American mind. The ACLU was pro-American and not subject to surveillance. All they had to do was file suit; and as soon as they did, they would become anti-American and would then become subject to surveillance. The ACLU would be anti-American to advocate surveillance, and pro-American to oppose it; but if they were pro-American, they had to advocate surveillance. If they advocated surveillance they were pro-American and didn't have to be watched; but if they didn't want to be watched, they were anti-American and had to be watched."

- Supreme Court Justice Joseph Heller

Re:Our era's reverse catch 22.

[goombah99]

The book had a lot more instances of catch-22

1) You could only "see" Major Major Major when he was not in. If he was in you could not see him, until later, when he was out.

2) The italian police were not permitted to tell those they arrested what they had been charged with.

Kid's these days! How many slashdotters don't know what Catch-22 is?

Appeal?

[Shadow Wrought]

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.

Re:Appeal?

[Shadow Wrought]

There's been no ruling that the Executive Branch violated the 4th Amendment, de facto or otherwise.

EXACLTY! Nor will there ever be that possibility so long as this ruling stands. That's the problem. Its a situation in which the Executive Branch can violate Consititional rights with impunity, and that's the exact reason why there's a Supreme Court in the first place.

The thing that really bugs me...

[Elemenope]

...is the standing rulings that have collectively made it law that taxpayer participation (i.e. by paying taxes) in a program is insufficient standing for challenging that program. Is there a lawyer in the house that can explain why if I pay for something that doesn't give me the standing to complain about it? A rational explanation escapes me, but IANAL...

I mean, I can *kind of* see that if taxpayer participation was enough, then the courts would be come much busier with complaints about government spending and programs (perhaps paralyzingly so), but there must be a better way than just excluding the entire class as lacking standing.

Re:The thing that really bugs me...

[MaceyHW]

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 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.

Checks and Balances

[ushering05401]

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.

Re:Checks and Balances

[Ogive17]

I agree on the short term, the checks and balances have been eroded. But the great thing about the US system is over the long run, the wrongs are righted. We have already seen some of this. A new administration will be in place in 18 months, and we'll see how much more change that brings.

Re:Checks and Balances

[ArsonSmith]

The wrongs are not righted only pushed aside while focus is redirect to the newest wrong. The old wrongs continue to be wrong.

Look at the monkey.

My sig is inappropriate for this post.

FUCK!

[Anonymous Coward]

FUCK!

See no evil, hear no evil?

[Vellmont]

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.

Better yet...

[msauve]

since the EFF was ineffective, support the NRA.

Re:Better yet...

[Valdrax]

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

Re:Good News !!

[The Angry Mick]

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.

Not a complete loss

[jack455]

IANAL I assume that the loss on appeal essentially erases the Michigan courts finding of the progral to be illegal, but at least it was overturned on the grounds of the ACLU not being harmed. I figure that's better than saying it is actually ok. or am I missing something?

Let me get this straight...

[jd]

• 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]

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.

Re:Good News !!

[ushering05401]

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:Better luck next time

[StrongAxe]

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?

Legal System = game of chess?

[rpillala]

Maybe the question is naive and the game of chess is obvious to everyone else. The submission says this ruling puts the ACLU in a difficult position. They are not permitted to know whether they are affected by the program or not. Perhaps the difficulty of the ACLU's current position is an unintended consequence, but that seems unlikely to me. What seems more likely is that the court did this as sort of a gotcha, as in "better luck next time, smart guy." I get this feeling every time I hear a lack-of-standing ruling. I understand that it's a valid concept it just sticks in my craw.

I admit that it's just a vague sense of the way things are in this country that leads me to believe this way. I wouldn't really know how to begin looking for other examples of this legal maneuvering in the recent past (or any past.) Can anyone give me some insight into this or a place to start reading?

Re:Good News !!

[GodfatherofSoul]

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]

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]

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 !!

[thule]

Since you don't communicate with *known* terrorists, then you will never be tapped. The NSA has been tapping international communications for ages. The question has been can they pass this information on to domestic law enforcement? After 9/11 many decided that the "wall" between the NSA and domestic law enforcement was stupid and needed to be lowered.

The only difference pre-Bush or pre-9/11 is that the information from the NSA can be used in domestic law enforcement to bring a case against you. Before the case can be expanded, they still must go the FISA court. The Washington Post confirmed this in an article that cited a FISA judge that was uncomfortable with FISA warrants being used in domestic cases. But the fact remained that the FISA court was still being used.

Re:Good News !!

[mrscorpio]

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

Re:Good News !!

[fastest fascist]

Good, then they won't have any trouble convicting you of speaking ill of the next democractic president, once criticising the president has been made a capital offense, and they won't have any trouble convicting you of treason for criticizing the law that you can't criticize presidents, an act of treason as well. Rights you give away in relatively good times are not magically granted back to you when the shit really does hit the fan, politically speaking.

Defined: Liberal

[Anonymous Coward]

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

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.

Entrap The Government

[porkface]

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.

Echelon story

[jbeaupre]

Apparently in the days of Echelon, there was an actual case where some mom said something along the lines of "Little Tommy bombed at the school play." The automated system flagged her as requiring a case file, and she was investigated and her future calls monitored. In this case, she was innocent, Tommy was innocent (except for bad acting), but the government decided it was worth expending resources to spy on her. Doesn't give me much confidence no matter how you look at it.

Just image what they'd do if you told someone you were going to nuke a tv dinner, pound it down, and crash for the night.

Guess I get to be the Troll here

[downhole]

Well, I guess I am about to be modded into oblivion by the anti-Bush crowd, but I don't see anything wrong with this ruling.

IANAL, but to my knowledge, in order to sue over an act (tort), you have to prove that you were not just negatively affected by that act, but affected in a specific dollar amount which the court can award you as compensation for the act. What measurable harm have these guys suffered? I don't think that the possibility that one of your conversations might be in a secret NSA database causes you any measurable harm that a court could compensate you for. If they have to ask the NSA whether they have any such records, that in and of itself serves as proof that they were not harmed in any way by the records (if they do exist), since if they were harmed in any way, they would be able to prove that in court.

I don't think it's a good idea either to seek to challenge laws in court on the grounds that you paid the taxes that support the program or somesuch. That is trying to place the courts in a role they were never meant to take - of judging the effect of laws. Passing and repealing laws is the job of our elected representatives in Congress and the President. Provided that the laws do not directly contradict the Constitution, the Courts have no say in what those laws are. (yes, I know that we seem to be steadily accumulating laws that do directly contradict the Constitution, but that's another post) If you don't like the laws, you're going to have to take it up with your elected Representatives, and you're going to have to accept that the American people do not necessarily agree with you on all issues, and they have as much right to their views as you do. If you want to change things, you have to convince your fellow Americans that you are right and they should vote your way.

Re:Guess I get to be the Troll here

[Apple Acolyte]

The fact is, the legal system and especially the federal judiciary loves to throw out cases based on technicalities such as this one. There are a whole host of judicial doctrines that govern whether or not a case will be heard, such as standing, ripeness, moot issue and political question. Courts always look for sufficient standing to bring a lawsuit; they look to see if the issue is "ripe" (ready to be ruled on); they look to see if the case's outcome would be moot; they refuse to hear cases involving political questions that would unnecessarily pit them against one of the other branches of government. The courts are there to rule on violations of the law (including the Constitution), not presumptive violations as identified by laymen regarding government acts that were based on ostensibly legal grounds. And for a case to succeed, it must pass those crucial judicial tests. Except in certain bright line cases, the courts operate based on the assumption that the actions of the other two branches are lawful. That's why if people are angry about actions of the executive, the primary remedy is usually legislative; the judicial remedy is secondary. (IANAL, but I hold a Political Science degree and took a lot of pre-law as an undergrad.)

Re:Guess I get to be the Troll here

[big_paul76]

Just because nothing you're doing is illegal, that doesn't mean there's nothing that the government could learn about you that might be later used against you.

Maybe you're having an affair. Maybe you're secretly gay, and don't wanna be "outed" yet. Maybe you have an unusual sexual fetish. These are all things that could be used as leverage against you, though none of these activities is illegal.

But maybe the FBI wants you to wear a wire when you talk to a friend of yours, and they'll blackmail you using that info. Maybe an organization you're a member of now will, 10 years from now, be criminalized, like what happened during McCarthy years.

"If one would give me six lines written by the hand of the most honest man, I would find something in them to have him hanged."
- Cardinal Richelieu

Patriots, out of options

[Phoenix666]

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?

Let me guess

[WindBourne]

you are one of those who have a Bush/Cheney bumper sticker next to freedom first?

Lawyers....

[tinkerghost]

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:Lawyers....

[DavidTC]

And you know this how exactly?

You have no idea who Bush is wiretapping whatsoever. No one does.

Saying 'It's just oversea calls made to suspected terrorists' is just repeating what the government says, and, more to the point, it's almost certainly wrong. Whatever the administration is doing, it is doing something that would not be allowed under FISA, or they're be using FISA. And that sort of behavior certainly would be allowed unless they have an incredibly lax definition of 'suspected terrorists'.

The US government is almost certainly wiretapping people it would not be allowed to had it used the courts, otherwise it would use the courts.

What recourse, indeed!

[triskaidekaphile]

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?

Re:None of you understand any of this, do you?

[BobMcD]

This is about gathering intelligence to be used against foreign agents who are engaged in a war against us, and who are trying to kill Americans and attack this country. I'm pretty much ready to call BS on this one. We are not at war. There is no enemy trying to attack this country. Prove me wrong:

1) Show me a single successful attack on US soil since 9/11, or for that matter prior to it

2) Show me a single 'foiled' attack plot since 9/11

3) Show me a single terrorist apprehended here, in the US, who was actively acting to harm anyone

I don't think you can.

There will not be another 9/11, folks. We can lay off the justification complex at any time...

For that matter, was 9/11 even a big deal? We lose twenty times that many people a year to automotive accidents. We lose threehundred times that many people each year to FREAKING MCDONALDS!!!

This just isn't SANE anymore.

Re:None of you understand any of this, do you?

[Telepathetic Man]

The president should be using warrants. Thats the whole point. Without warrants, there is no solid record of who or why someone had their phone tapped. There should be some level of oversight. Failure to include a warrant should be illegal, that's why there is the Foreign Intelligence Service court. All the president has to do is file who and why he wants to wiretap someone with them, they sign the okay, the paper document gets filed. Nothing to it, but the Pres wants to do everything his way, with no oversight. Why? What possible reason could he have to not want to record which terrorist loving citizens are being tapped?

The Clinton claim is simply wrong and dishonest and is a flat out lie, you may want to reconsider the source of that info. Clinton did use warrants, and we have a full record that used to be accessible via a FOIA request.

Re:None of you understand any of this, do you?

[frank_adrian314159]

Clinton did this.

Only with the oversight of the FISA court. And that's what the big deal is - will there be checks on who is being listened to or not. Given that the FISA court could be asked for wiretap privilege up to three days retroactively and that it had turned down a total of three (out of thousands of) requests during the Clinton years, this does not seem to be an overly harsh hurdle to overcome. Unless, of course, you're a couple of assholes like Bush and Cheney who think that the law need not apply to them.

I give up

[mdsolar]

Now, after my party hangs up, I just blow my whistle into the phone really hard. At least I get the satisfaction of hearing them scream.

Re:I give up

[TheRaven64]

Don't do that. Transmit white noise down the line for 30 seconds. Let them devote some serious computer power trying to decrypt it. Oh, and buy shares in whoever sells supercomputers to the NSA if you think you can persuade enough people to do it.

Decision Just on Technical Grounds

[NewYorkCountryLawyer]

1. This 1-1-1 decision (pdf) is just on technical grounds -- plaintiffs' lack of standing.

2. In view of the concurring and dissenting opinions, and the importance of the subject matter, it is likely to receive Supreme Court review.