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Supreme Court Won't Hear ACLU Wiretap Case
I Don't Believe in Imaginary Property writes "The US Supreme Court refused without comment the ACLU's appeal of a lower court ruling that prevented them from suing over the government's warrantless TSP program. The problem was a Catch-22: they lack legal 'standing' to sue over it because they can't prove that they were suspected terrorists, but neither can they find out who was actually suspected, because this is a matter of national security." Update: 02/20 00:17 GMT by KD : Removed an incorrect statement after a reader pointed out that, with the expiration of the Protect America Act this weekend, foreign surveillance will revert to oversight by the FISA court.
If you can sue us, we'll let you know, unless we consider that to be a secret.
Then proof will exist that there is standing.
You are being MICROattacked, from various angles, in a SOFT manner.
Some of these guys are hand-picked by the very same administration, did you expect these shrewd men and women to bite the very hand that feeds them? Don't expect any real change unless there are fundamental changes to the whole administrative.
What's kind of depressing is how much the general public just doesn't care about this at all.
I'll admit up front: I have things to hide. Dirty little secrets that are none of your business, and that the government doesn't need to know. Things that are embarrassing, things that could be used to damage my reputation, nothing particularly dangerous, but stuff that should be between me, myself, and I, and no one else.
I think most people are like that, even the ones who proclaim so loudly that they have nothing to hide. I mean, if you have something to hide, you're a terrorist, right? The government could never use your dirty little secrets in any shape, form, or fashion, right? Because the government never loses our personal information, never has "leaks" that could reveal compromising information, would never do anything seedy for purely political purposes?
All of those who have "nothing to hide" are really starting to piss off those of us who do.
I'm sick of following my dreams. I'm just going to ask where they're goin' and hook up with 'em later.
Let me get this straight - we will have to rely on a suspected terrorist to sue for this to go forward?
Something about how no charges shall issue except on a warrant or something like that?
Wasn't one of the bits in the declaration of independence criticizing King George III about secret trials?
Bit sad, really, that it's coming to this.
In Xanadu did Kubla Khan
A stately pleasure dome decree
And an independent media (e.g. James Risen at the New York Times) to publish some lists of people who have been illegally wire-tapped. Or maybe some technician who works for a major communications network can upload the list of names/numbers they've been tasked to set up monitors on.
The Slashdot posters make.
- None can love freedom heartily, but good men; the rest love not freedom, but license. -- John Milton
It is interesting to see what the Supreme Court has ruled upon or refused to advise upon from the past... whether the subject was slavery or other free rights... they constantly get it wrong. Example:
."
In March of 1857, the United States Supreme Court, led by Chief Justice Roger B. Taney, declared that all blacks -- slaves as well as free -- were not and could never become citizens of the United States. The court also declared the 1820 Missouri Compromise unconstitutional, thus permiting slavery in all of the country's territories.
The case before the court was that of Dred Scott v. Sanford. Dred Scott, a slave who had lived in the free state of Illinois and the free territory of Wisconsin before moving back to the slave state of Missouri, had appealed to the Supreme Court in hopes of being granted his freedom.
Taney -- a staunch supporter of slavery and intent on protecting southerners from northern aggression -- wrote in the Court's majority opinion that, because Scott was black, he was not a citizen and therefore had no right to sue. The framers of the Constitution, he wrote, believed that blacks "had no rights which the white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery for his benefit. He was bought and sold and treated as an ordinary article of merchandise and traffic, whenever profit could be made by it."
Referring to the language in the Declaration of Independence that includes the phrase, "all men are created equal," Taney reasoned that "it is too clear for dispute, that the enslaved African race were not intended to be included, and formed no part of the people who framed and adopted this declaration. . .
props to PBS
This is the same Catch-22...
And in the end, the love you take is equal to the love you make
Catch-22: The U.S. government is too corrupt to investigate corruption.
Catch-23: Oil and weapons investors Cheney and Bush want the price of oil and weapons to rise, so Iraqis must die.
Cheney and Bush have killed more Americans than the terrorists, and far more Iraqis than Saddam Hussein.
As demonstrated by their refusal to use it? The Supreme Court is probably the most easily abused of the three branches, it's true, but you've got to remember that there are still checks and balances. The president can refuse to execute a ruling (technically it's illegal, but it's been done), Congress can rewrite the law in a way that gets around the ruling, and they can even start the process of amending the constitution.
Looking from a purely constitutional perspective, the supreme court is also the branch that has abused its power the least imho. Congress routinely enacts laws that are only constitutional if justified by the "general welfare" clause of the preamble, not any part of the actual constitution. The president can send troops anywhere to fight that he wants without a declaration of war, and this president has outright ignored several parts of the constitution.
So, while I am a strong believer that the supreme court has had its share of overreaching rulings that weren't strictly constitutional, I think that pales in comparison to the abuses that the other branches have managed to pull off.
Recommended reading: Kafka's Before The Law Between this and secret laws for security checkpoints at airports, Kafka's absurd vignette is looking looking unsettlingly normal.
When it comes down to it, this ruling (and the ruling of the lower court) isn't 100% onerous, because a US citizen who is tried using evidence obtained in this manner would finally have standing to contest the government's actions. In such a case, if (or, should I say, when) the government's wiretapping is found to be illegal, the evidence would be suppressed, and if the government's case was otherwise weak, the charges could be dismissed. If a person isn't practically affected in their ability to conduct legal day-to-day activities, then it's a reasonable conclusion (whether or not it's a correct one) that they were not damaged and therefore have no standing to sue.
Of course, it's still 95% onerous, because there are still people reviewing the wiretap data (recordings, records, etc.) and those people are privy to otherwise private conversations.
Well?
Well what?
You're listening to my phone calls and it's not a secret.
I told you, you're not allowed to sue me unless you know my secret.
But I do!
No you don't.
I DO!
No you don't.
Look, I don't want you spying on me.
Well, that's a secret.
Aha. If it's a secret, I must be a terrorist, so it's not a secret anymore! I got you!
No you haven't.
Yes I have. If it's an official government secret that you're spying on me, I must be a terrorist.
Not necessarily. I could be listening to your phone calls in my spare time.
The fact that the government is let off the hook because the victims can't legally show harm - that is, they are prevented from actually knowing if their privacy is invaded - is quite disturbing. A child pornographer could use the same argument; that because his children (err, victims...) aren't old enough to understand the harm done to them, that they have no grounds for objecting to their pictures being taken.
I think, though, that there's a double standard when it comes to government. Unlike "terrorists" - which are presumed guilty except when there exists incontrovertible exculpatory evidece - the government is presumed innocent, and its evidence and intentions beyond reproach, except when the accused manage, by some legal loophole, to show otherwise.
Justice at the federal level has completely changed:
"If you aren't doing anything wrong, what do you have to hide?"
Indeed, all patriotic Americans need to ask themselves this question of the government, particularly the executive branch. If indeed, they aren't doing anything wrong, why must they keep everything so secret - even from Congress and the Courts? Isn't it more likely that they are using the secrecy to cover up activities that most Americans would consider wrong?
Most worrisome is the fact that we have gone from an open society which feared nothing ("The only thing we have to fear is fear itself...") to a society where everyone is suspect and fear of what one might do is sufficient to deny anyone and everyone their rights under the law. The justice system has been transformed from an open and transparent process which followed the principles of fairness to a capricious and arbitrary exercise of power.
The society for a thought-free internet welcomes you.
We need a Congressional hearing plain and simple. The US Congress doesn't have to worry about standing, it's their job to be concerned about the business of the gov't. Too bad they're so lazy.
> the supreme court is also the branch that has abused its power the least
Really? You should double check the Constitution with regards to the enumerated powers (you know, what the 10th amendment discusses) of SCOTUS... in fact they are the ones (not the constitution) that declared themselves the supreme arbiter of the constitution (see Marbury v. Madison).
Technically speaking... the scope of power SCOTUS has is in of itself unconstitutional... problem is that as things have evolved... in order to change things back... we'd either need a SCOTUS ruling (of them giving up their power) or a constitutional amendment... which could still in theory be ignored by them (see cases of how they have ignored the 10th amendment).
Help Brendan pay off his student loans
What, you want the U.S. Supreme Court to be forced into taking cases that don't meet legal criteria for bringing a lawsuit? That doesn't make sense. Any court in the U.S. has that power, by the way, not just the Supreme Court.
Would you prefer, then, that the U.S. Supreme Court hear the case and start issues subpoenas for classified information on behalf of the ACLU? That makes even less sense, as then the SC would be exercising far too much power.
If there is any digging to be done, the ACLU is not the one to do it, nor is the Supreme Court. That power is granted to the U.S. Congress by the Constitution. Congress must investigate, hold hearings, and can even produce a report detailing "injured" parties. It is at this point that those injured parties could sue, or join a class action suit brought by the ACLU.
By refusing to hear the case, the U.S. Supreme Court is correctly interpreting the law and the Constitution with regard to what powers it holds. In other words, the refusal was just right.
...is over in the US. One basic principle of it is that the law applies to everyone equally, that nobody is "above the law". There can be exceptions and special priviledges as long as they are written into the laws. So in most countries MPs are exempt from prosecution, for good reasons, and that's ok because it's part of the process.
In the US, the rule of law has been abandoned. You are back to the rule of power: Everyone does whatever he can get away with. Your so-called president leading the way.
Assorted stuff I do sometimes: Lemuria.org
rj
In Free Lunch, David Cay Johnston notes a trend in limiting access to the courts. In this way, If someone somewhere doesn't want a case to be heard, they just have to buy a little influence and can claim a legitimate victory. Note the reason the courts dismissed ACLU's earlier efforts in this line: only persons under surveillance have standing to sue, and the nature of the program is such that you're not allowed to know that you're under surveillance. That is, if you can prove that you have standing, you can be imprisoned. If you can prove that someone else has standing, you can be imprisoned.
In the book, Johnston details one case of a couple who owned an auto repair business in a spot where (I think) Jeep wanted green space for its factory complex. You can guess whose complaint was thrown out. These days it seems like there are only checks and balances when they're backed up by personal relationships or bullying. Note the number of subpoenas the white house has simply ignored.
When the axe came to the forest, the trees said, "Look out - the handle was once one of us."
This was the quote at the bottom of the page as I read this article:
"paranoia, n.: A healthy understanding of the way the universe works."
--AC
...did you expect these shrewd men and women to bite the very hand that feeds them?
The whole point of the lifetime appointment of judges to the Supreme Court is that they wouldn't have to be beholden to whichever powers appointed them. Scalia, Alito, and Thomas could have a change of heart and become flag-burning, dope-smoking, abortion-promoting hippies, and there's really nothing that could be done to punish them. I think they can be impeached by Congress, but that isn't really common.
No, this is 100% Fed-Certified Grade-A bullshit. Why? Because this is a green light for the crooks in power to continue doing this kind of thing. And what kind of trial do you think you will get with the evidence collected?
Guess what, you won't be tried. Ever. You will be held so that they can illegally solicit more evidence from you through nefarius means such extradition out-of-country, or just a secret location somewhere in Washington. Did I mention that the illegal solicitation of further evidence means you will be chained up in a dungeon for 10-15 years with no legal recourse whatsoever being exposed to God-knows-what kinds of "interrogation techniques?"
Yeah, we're perfectly capable of doing it ourselves, thank you very much. We don' need no furrn' scumbags putting honest, hardworking American scumbags out of work!
Let's get those skeletons out of the closet. I'll start. I masturbate. I have soiled myself on occasion. And I frequently inhaled in the presence of pot. I drank before I was 21, and I often exceed the speed limit. I regularly roll through a stop sign near my house. And I am greedy when it comes to sweets. Now they've got nothing on me. See how good it makes you..... Wait a minute, someone's at the door, brb.
You rang?
Supreme Court writes: "We don't believe in imaginary problems."
Don't trust anyone under thirty.
This is definitely a fishing expedition. After all, our government would never break the law or torture innocent people and then try to avoid any accountability.
:(){
My understanding is that the U.S. Supreme Court hears only about 50 of the 5,000 cases that people try to bring before it.
That's a perfect work-avoidance scheme: "We just do as much work as we want to do."
If a case gets all the way to the U.S. Supreme Court, that indicates SOMETHING is broken. However, faults in the law generally cannot be fixed because of a conflict of interest. A large part of what lawyers do is work generated by faults in the law. They don't want most of their work taken away from them. United States Supreme Court justices are lawyers, and they think like lawyers to a large extent, and they have allowed themselves to become comfortable with the faults in the law. It's all a huge work-avoidance operation.
Oh, wait...
Peter predicted that you would "deliberately forget" creation 2000 years ago...
I find it VERY hard to believe that the government actually thinks that terrorists would be dumb enough to still use a medium of communication they KNOW the NSA is listening in on. So that leaves the logical question: Who REALLY are the targets of the warrantless wiretapping program?
The answer is simple: civil rights advocates, right wing conspiracy theorists, and computer geeks. The NSA want to listen in to IRC chats, instant messages, and blogs of people who oppose the governments sick and twisted practices, and stand up for their rights. Now anyone who commented on this post could be arrested under the USA PATRIOT Act...
What next? A government controlled Internet?
The US is all flowers and puppies. And corporations.
Please welcome our new corporate dictatorship. I for one am glad I have dual US/EU citizenship. You'll enjoy WALMART, I'll enjoy a continent devoid of those who created the mess the US is in in the first place.
Regards.
Oh wait, it's not? Darn.
Yeah, but apparently you gotta prove the government is violating your constitutional rights.
That's the sticky part.
Really? You should double check the Constitution with regards to the enumerated powers (you know, what the 10th amendment discusses) of SCOTUS... in fact they are the ones (not the constitution) that declared themselves the supreme arbiter of the constitution (see Marbury v. Madison).
How you figure? The Constitution itself states that the Judicial branch shall have jurisdiction over all cases arising under the Law of the U.S. and the Constitution. Marbury v Madison was just a case where a Law passed by Congress conflicted with the Constitution -- and again, it is clear from the Constitution that in such a case, the Constitution wins. That case may have formalized the notion of "Judicial Review", but the principle itself is quite Constitutional.
Oh and by the way, the statute which the Court ruled in Marbury v Madison to be Unconstitutional was one which increased the Court's power. It's kind of hard to call this a power grab when the executed their Constitutional power to judge a case under the law in order to reject an Unconstitutional increase in power.
see cases of how they have ignored the 10th amendment
True enough, everyone pretty much ignores the 9th and 10th. But it's worth pointing out that they ignore this ammendment by not finding a law passed by Congress to be in conflict with the 10th, and thus Unconstitutional. How exactly would they do this if not via Judicial Review as established via Marbury v Madison?
In other words this is a case of the Judicial Branch abusing their powers by under-utilizing them, resulting in an increase in power of the other two branches.
The enemies of Democracy are
I'm sure it was even better in the original German.
512 MB RAM, 20 GB disk, 200 GB transfer, five datacenters. $19.95/month.
Just so I get this straight, to defend my freedom, I have to incriminate myself and get arrested?
We used to have a Bill of Rights. Now, with the rights gone, all we have left is the bill.
It's is naive to claim that the Supreme Court has too much power. Anyone who says that does not understand the law and the Constitution.
The Supreme Court can only hear, and rule on, complaints brought before it. For a complaint to be valid, it must be brought by an "injured party" (i.e. one harmed or affected in some demonstrable way). who brings their plaint (i.e. plaintiff) before the court. The court rules on the merits of the complaint. The ruling only has authority over that specific case; this does not make that ruling law. It does indicate how the court would theoretically rule on a similar case, but the Supreme Court is unlikely to rule on very similar caseit prefers to hear new cases with merits not before considered.
The effect of Supreme Court rulings does not compel other courts to rule the same way, although they are guided by legal precedent.
In short, the only power the Supreme Court has over anything but the specific case brought before it is whatever authority people believe it has (i.e. it influences people because of what they believe). However, the Supreme Court does not have actual authority to enforce its ruling upon any but the parties to the specific case.
Perhaps it is right according to the letter of the law, but it's still troubling. As it stands, the government can seemingly declare any potentially unconstitutional act as "top secret" and they get no oversight. We can't even get the courts to take a look at it, because we don't know the details of the act. It's really quite disturbing.
The only problem with the submission?
TSP no longer exists, and hasn't since 17 January 2007.
ALL surveillance was happening under the guise of the Protect America Act, which was designed exclusively to allow foreign intelligence collection without a warrant when the traffic travelled through the United States, whether incidentally or by design. Foreign intelligence collection is always allowed without court oversight; the changes explicitly allowed such collection on US soil as long as the target was reasonably believed to be a non-US person physically outside of the United States, regardless of the other end of the conversation. The change was absolutely done to make such surveillance easy.
Now the Protect America Act has expired with its automatic sunset, and ALL surveillance must again happen only via FISA.
There is no TSP or any warrantless surveillance program. What a horrible summary.
Of course, I'm sure a bunch of people will respond, "Oh, sure, there is no warrantless surveillance...THAT WE KNOW OF." Oh, how convenient: arguing about something that we can't prove one way or another? Please, let's keep the discussion in the realm of known facts, namely, that TSP no longer exists. The article even says as much. Did the submitter not even RTFA?
No, it means we disagree that the law states we can't sue due to lack of standing.
I still have more fans than freaks. WTF is wrong with you people?
Note, of course, that the "general welfare" clause was not intended to permit unrestrained growth of government services for whatever vaguely-collective reason Congresspeople might concoct in the service's defense. The "general welfare" clause was not intended to permit galloping socialism.
At least, that's true according to James Madison in Federalist 41. Alexander Hamilton, OTOH, took the broader view that Congress may spend as it sees fit, so long as it doesn't favor a particular party.
Of course, even according to Hamilton's relatively-leftist, pro-government position, expenses to pay for, say, private military contractors, farm subsidies (which mostly go to the largest 20% of farms, often owned by e.g. Tyson Foods), welfare checks for the poor, (benefiting a subset of the population is not necessarily a benefit to the whole population. This doesn't make welfare a bad idea (though its implementations thus-far have ranged from moderately-useful at best (e.g. the EITC), and idiotic at worst) - merely, it conflicts with the way the U.S. Constitution both stands and as was intended by its authors), etc. would, I suspect, be invalid reasons for government spending.
Luckily for American Congresspeople, the majority of the American public has neither read the Constitution or Bill of Rights, nor has been asked to think hard about those documents -- we can thank the public education that the Dept. of Education tries to manage -- and the 20% or so who might have given them more than a passing thought tend neither to abide by those documents nor care about their intent. Combined with incentives to ignore the meaning of the highest law of the land, Congresspeople thus trample the documents they are supposed to uphold...
Is Capitalism Good for the Poor?
Federal judges are appointed for life. A president cannot remove them after appointment; only Congress may do so through impeachment proceedings, and a rash of such proceedings would look like a raw power grab of the judiciary by the Democrats and hurt them in the next elections.
You can never go home again... but I guess you can shop there.
Finally i can go to sleep knowing that the people who are out to kill us have a harder time communicating.
The Terrorist Surveillance Program has not existed for over a year, since 17 January 2007. All foreign intelligence collection in the meantime has occurred under the guise of FISA and the temporary and recently-sunset FISA modifications provided by the Protect America Act. With the expiry of the Protect America Act, ALL foreign SIGINT collection reverts to the 30-year old FISA rules.
If someone could point out the warrantless surveillance program that is known to exist today, I'd appreciate it. And yes, the burden of proof is on you, as simply asserting that one must exist doesn't quite cut it. Remember how TSP came to light: leaks to the New York Times. The government simply cannot keep such controversial programs secret. There is no evidence of any current, ongoing "warrantless" surveillance.
The other important thing to remember is that foreign intelligence collection never requires a warrant or court oversight of any kind; the FISA modifications were designed to enable easy foreign intelligence collection via assets on US soil or traffic that may travel physically through the United States. It does not matter in the least if the other end of the conversation is a US person on US soil, as long as they are not the target of such collection.
Such collection is always legal and allowable without a warrant if the collection occurs outside of the United States and the US person is not the target of such surveillance. Special and very extensive measures are undertaken to conceal the identity of US persons in such collection.
The main difference with what became known as TSP, and refined in the Protect America Act, was the provision to enable such collection via means to which we have easy and routine access; namely, the massive amounts of communication traffic flowing through equipment under US control. Whether or not you may agree with that is a different issue entirely. The purpose was never to target US citizens without a warrant. The purpose was to collect foreign intelligence via US assets. Currently (after PAA expiration), if traffic travels through the United States, even if BOTH ends are non-US persons physically outside of the United States, the Intelligence Community is prohibited from collection without a warrant. That's the "Intel Gap" we wanted to close.
Fuck systemd. Fuck Redhat. Fuck Soylent, too. Wait, scratch the last one.
Perhaps you are not aware of exactly how Stare Decisis and precedent work- lower courts are indeed bound by the decisions of the Supreme Court.
Not following precedent is an error and grounds for appeal to a court that will.
Ninth Circuit Court of Appeals:
"Stare decisis is the policy of the court to stand by precedent; the term is but an abbreviation of stare decisis et non quieta movere -- "to stand by and adhere to decisions and not disturb what is settled.""
"It is possible to commit no errors and still lose. That is not a weakness. That is life." -Peak Performance
There's a pretty simple way out of the catch, although it would be hard to do and potentially open pandora's box: have Congress pass a law which allows legal challenges to the Constitutionality of laws and actions without having to show actual damages. The only reason it's a problem now is because of the technicalities of the laws, which could easily be remedied.
On the other hand, good luck in getting Congress to do something as blatantly beneficial for the country as that...
I would suggest all Americans now get a Cryptophone and use PGP as standard.
Any sufficiently advanced man is indistinguishable from God
What enemy? Some terrorists who landed a single (note, for the record, ONE) blow to the US that shook the whole country in its foundations? Are you kidding? Talk to anyone from Israel or Northern Ireland and they will point and laugh at you. That's your enemy? I'm more scared of kids with ink in their water pistols.
What way of life? Fear- and scaremongering? You want to protect that? Because that's what the US are about today. The US used to be the epitome of freedom. Of liberty. The place to be on this planet if you are a freedom loving person who wants the sky only as his limit. This changed a lot, I can tell you. The US changed from that good Uncle Sam that protects us from the dreaded communists, the good guy we support and hold in high esteem, who we would fight and die for if need be, because we know that he would do the same for us, into some old bastard that would sell us our own blood if we let him, and if we don't, he'll just come and squeeze us 'til we hand it over for free.
The only thing that is worth living is freedom. Freedom, though, requires trust into your government, and a government that does not trust its people does not deserve the trust of the people. Because the only right to exist for a government is to serve the people that carry it. If it does not do this, it is obsolete and needs to be replaced by one that does.
IIRC, that's what your founding fathers did. Maybe this needs to be repeated from time to time, so people don't get fat and lazy.
We used to have a Bill of Rights. Now, with the rights gone, all we have left is the bill.
Yeah, that's pretty much it. When I first figured that out in high school civics, I thought it completely unfair, but think about it...it's the Supreme Court. If you think a law is unconstitutional, you have to break the law, get arrested, then have your day(s) in court. Basically, nothing gets changed unless you are willing to take a stand.
While it kinda sucks for the activist, I guess it's one way to keep from having to hear cases from every stupid schmuck who wants to challenge a law that doesn't personally affect him/her from wasting the court's time with trivial lawsuits.
MCSE? No, sir...I don't do Windows. Yes, I am an idealist. What's your point?
No it decreased the power of the other two branches, because they can only act with the approval of the Judicial Branch - not striking down a law is a tacit approval. To play devil's advocate - why can't the President serve as an arbitor of Constitutionality by rejecting the execution of a law?
D6 63 0D 70 89 81 BB 8E 7B 7C 5F 5D 54 EA AB 73
Ok, I can follow that train of logic, but in this case it's a bit more tricky. I don't think a law outlawing terrorism is a bad thing (and I doubt this could be thrown out as unconstitutional), but unless I do something in that area (and bluntly enough to make sure our incredibly efficient system tracks me), I cannot be sure that I'm being wiretapped. But if I can't be sure, I can't go to court...
I cannot win in this case, no matter what I do. To challenge the law (or rather, procedure since afaik there is no law legalizing illegal wiretapping, or it would not be illegal), I would have to commit a completely different crime, which is a crime by anyone's definition.
We used to have a Bill of Rights. Now, with the rights gone, all we have left is the bill.
I eagerly await the outcome of Congress' investigation into this secret program.
When the axe came to the forest, the trees said, "Look out - the handle was once one of us."
"So why again does Bush and Cheney want the price of oil to rise?"
See these stories, for example:
Cheney's Halliburton Options Up 3,281% Last Year
Cheney: "I cut all ties to Halliburton years ago." Congressional Research Service: "Cheney made $8,000,000 from Haliburton while in office."
Quote from one of the comments in that story: "The Congressional Research Service has concluded that holding stock options while in elective office DOES constitute a "financial interest" whether or not the holder of the options donates the proceeds to charities, and deferred compensation is also a financial interest." [My emphasis]
Also, in general Cheney and Bush have shown that they don't believe any rules apply to them. So, there may be hidden bank accounts in Dubai, for example, which is where the head office of Halliburton is located now.
By rejecting the law, the Court appointed itself ultimate arbitor of Constitutionality which is not an expressly enumerated power.
Yes, it is: "The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority"
What do you think a judge does, if not arbitrate? This is the fundamental meaning of "judging", to interpret the meaning of the law, and when multiple laws conflict, to decide which applies and which must fold. And in the case of a law passed by Congress and the Constitution, the laws of Congress must always fold.
Or more to the point, what do you think should happen when a case comes before the Supreme Court, and a law passed by Congress is in conflict with the Constitution?
No it decreased the power of the other two branches, because they can only act with the approval of the Judicial Branch - not striking down a law is a tacit approval. To play devil's advocate - why can't the President serve as an arbitor of Constitutionality by rejecting the execution of a law?
The other two branches have always been subject to decisions made by the Courts in cases that came before it. To suggest otherwise is to imply that the other two branches are in fact above the law and cannot be brought to justice for violating the law. That may be a popular theory these days, at least for the Executive branch, but it has zero Constitutional basis.
As to your "devil's advocate" question: Because the Judicial power isn't granted to the President. The Executive branch can in fact decline to enforce a law, this is what the DoJ does all the time by choosing who to prosecute and who not to. But that decision does not in any way constitute a legal decision, because matters of law are decided by a Judge. And if a certain law requires action of the Executive branch, then in a case brought before the courts, the Judicial branch has the power to render judgement against them and a proscribe appropriate penalties.
The enemies of Democracy are
"The cases falling into the second category usually require deep thinking -- they aren't simple problems..."
That's exactly right. However, most of the problems are created by laws that aren't clear, or have edge cases the lawmakers didn't consider.
Hearing only 1% of the cases is evidence that something is broken. The people the law is designed to protect are not satisfied. The justices of the Supreme Court serve their own intellectual interests more than they serve the interests of their customers.
The system is broken, and when it is broken, no one fixes it. Irresponsibly ignoring the fact that the something is very wrong is the behavior of children, not adults. The U.S. legal system needs adult supervision.
The Tree of Liberty must be refreshed from time to time with the blood of patriots and tyrants, as Thos. Jefferson told us.
This tree looks distinctly drought-stricken.
Hail Eris, full of mischief...
E pluribus sanguinem
And the mental midgets who keep tagging "suddenoutbreakofcommonsense" & the other trite tags. What was the point of tags again?
Hail Eris, full of mischief...
E pluribus sanguinem
Whoever destroyed the World Trade Center killed 3,000 Americans. The decision of Cheney and Bush to have a war with Iraq has killed more" Americans than that.
See these stories, for example:
Iraq Conflict Has Killed A Million Iraqis: Survey.
The number is rapidly rising. In October 2006 the number of Iraqis killed was estimated to be 655,000.
The highest estimate of Iraqis killed by Saddam Hussein was 1 million, so the U.S. government has killed more than Saddam. See, for example, Survey: Saddam killed 61,000 in Baghdad.
I'm not saying I'm against Judicial review, but there are alternatives. As I mentioned the Executive branch can decide to not execute, or Congress can decide to take the opinion of the court and change the law.
Executive Orders have been used to manage the execution part of law... and the Judicial branch has no power to penalize, that falls upon the legislative branch.
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You have oversimplified the principle of Stare Decisis. The balance of issues regarding this principle presented in Wikipedia demonstrate the approximate accuracy of what I stated. In particular,
Anyway, your point, even taken at face value, is about principles of the legal system in general--not the Supreme Court. It is not an indication that the Supreme Court has too much power (i.e. more than it was intended to have). The whole point of it being the Supreme Court is because it was intended to be the final arbiter of complaints. It has not attempted to appropriate to itself extra power than it was not granted in the Constitution.
You should read the book "Politically Incorrect Guide to the Constitution". It's a fascinating read on the very subject you are discussing.
Libertas in infinitum
Absolutely! Instead, let's all march ourselves quietly and peacefully to the nearest detention centers, because, as good citizens, it's our duty to acquiesce to the needs of the government, and, ultimately, since there's no way they can protect our freedom while allowing us to run free, we should lock ourselves up. It's for our own good, comrade. I'm sure you understand. You don't want freedom, anyway. It's too dangerous.
Truth, Justice. Or the American Way.
I agree with much of this, except the "trust in government" part. NEVER trust the government. That leads to complacency. Complacency leads to a few people in power rigging the system for their benefit, while screwing everyone else. Basically, where we are, today, thanks, in large part, to the Republicans. Though the spineless Democrats didn't help much.
We, as truly "good citizens," must be ever vigilant and on the watch against the encroachment of government. Trust your friends, if you can; trust your spouse, hopefully; trust your dog - but not the cat, the little bastard - but never _ever_ trust your government.
Truth, Justice. Or the American Way.
From what I recall of the ACLU compliant they asserted that there had been harm due to the mere existence of the program, not because any one in particular was wiretapped. Apparently some of the people who came to the ACLU seeking legal counsel would not speak freely over the telephone and the ACLU and/or their clients had to absorb travel cost that would not have been necessary if the government wasn't illegally spying on people. Certainly from personal experience I know plenty of people (who are not generally paranoid) who have become increasingly guarded in their speech over the phone... I am not talking about anything sketchy but legitimate criticisms of Bush, Iraq, etc. So I find it very easy to believe that the ACLU's clients are doing the same.
I think you're crediting the Dems with too much intestinal fortitude - even if only hypothetically.
That's part of the conundrum in which we find ourselves, this November: vote for a Republican, who, while far from gutless, are just flat out evil; or a Democrat, who, even with a majority, can't bring him or herself to take action. Pansies...
We need a viable third party, if only to shake things up. This is terrible.
Truth, Justice. Or the American Way.
"There can be no right, without remedy."
"Ubi jus ibi remedium." (Where law prevails, there is a remedy.)
Go ask Blackstone.
"It is possible to commit no errors and still lose. That is not a weakness. That is life." -Peak Performance
Which is simply not true. Stare Decisis causes those decisions to 'flow' downward, and be imposed upon substantively similar cases that are brought forward in courts of first instance; and in fact, that a lower court does not follow precedent is grounds for appeal.
Admittedly, there is a grey area in which courts debate over whether precedent is binding with regard to a specific case; however, in general, the Supreme Court's ability to enforce its rulings are far more substantial than you appear to give it credit for.
In the same way, the Executive is not bound to obey rulings of the Courts, and, for that matter, the military is not bound to obey the orders of its legitimate civilian commanders, either, but they do, in many cases against their specific personal objections- for example, see Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952).
Those issues aside, I take no issue with your statements regarding the powers of the Supreme Court and never did; I apologize if it seems that way.
"It is possible to commit no errors and still lose. That is not a weakness. That is life." -Peak Performance
Note, of course, that the "general welfare" clause was not intended to permit unrestrained growth of government services for whatever vaguely-collective reason Congresspeople might concoct in the service's defense. The "general welfare" clause was not intended to permit galloping socialism.
At least, that's true according to James Madison in Federalist 41. Alexander Hamilton, OTOH, took the broader view that Congress may spend as it sees fit, so long as it doesn't favor a particular party.
Of course, even according to Hamilton's relatively-leftist, pro-government position, expenses to pay for, say, private military contractors, farm subsidies (which mostly go to the largest 20% of farms, often owned by e.g. Tyson Foods), welfare checks for the poor, (benefiting a subset of the population is not necessarily a benefit to the whole population. This doesn't make welfare a bad idea (though its implementations thus-far have ranged from moderately-useful at best (e.g. the EITC), and idiotic at worst) - merely, it conflicts with the way the U.S. Constitution both stands and as was intended by its authors), etc. would, I suspect, be invalid reasons for government spending. I don't think you are considering the economic effect of welfare properly. Anything which gives income to the unemployed by the operation of the free market indirectly raises the wages of the employed. If you can make $5/hour doing nothing. You aren't going to work for $5. That would be the same as working for free, or worse (since you would need to hire a babysitter while you were working for free).
So a job which might have commanded $3/hour in a pure free market, must command more than $5 if there is a $5/hour equivalent welfare. Another way to look at it is that anyone satisfied with what they can make on welfare is not going to work, thus the labour pool is smaller, thus those with jobs benefit from welfare in the form of decreased competition for their jobs. real jobs must pay significantly higher than welfare, since people on welfare avoid the costs associated with having a job (such as transportation, work clothes etc).
It would not be correct to ignore the other factors such as inflation (which congress also tries to influence via the Federal Reserve that it has created) but it is wrong to say that welfare only benefits people without jobs. We don't even need to get into the other side effects such as decreased crime that exists in welfare states. Obviously decreased crime benefits everyone (except those in the business of selling crime-fighting related products - guns, police cars, jails, security). Luckily for American Congresspeople, the majority of the American public has neither read the Constitution or Bill of Rights, nor has been asked to think hard about those documents -- we can thank the public education that the Dept. of Education tries to manage -- and the 20% or so who might have given them more than a passing thought tend neither to abide by those documents nor care about their intent. Combined with incentives to ignore the meaning of the highest law of the land, Congresspeople thus trample the documents they are supposed to uphold... well.. I'd basically have to agree with that, except the congress people are neither lucky nor unlucky. It is the private interests (i.e. the wealthy) who benefit. If the public was more educated there would be a different set of congress people and they would be lucky in other ways (they would be beloved and trusted by the people and the world and celebrated as heroes for all time to come). Currently each and every congress person is going to have to take to their grave, knowledge of the disaster they have wrought on their homeland, and the knowledge that future generations (if there are any future generations) are probably not going to forgive them.
No one has a right to their *own* opinion. They have a right to the TRUTH.
What they will do is if they find something, they will sick FBI or CIA agents on you and use traditional law enforcement powers to find out again what they already know, but this time legally. They basically had no probable cause, but used illegal means to find one.
If someone asks why they focused on you, they can always say they got an "anonymous" tip.
Basically, you're screwed.
Say good bye to our little Republic experiment... Ben never thought it would last this long anyway...
"There are laws that enslave men, and laws that set them free. " - Sean Connery as King Arthur
What I meant is that as arbitor there is nothing in there about remedy. So the judicial branch can rule that a law is in violation of Constitution, but does not have the explicit right to strike it down.
.. striked down? This is very simple. You have 2 conflicting laws, so which one has the bigger dick? The constitution does one might think. So.. what do we do with the other law? It can't stand. It can't be enforced. .. Think about it.
And what effect, exactly, do you suppose ruling that a law is in violation of the constitution does? Perhaps make the law ineffective, null, unenforceable,
I'm not saying I'm against Judicial review, but there are alternatives. As I mentioned the Executive branch can decide to not execute, or Congress can decide to take the opinion of the court and change the law.
What you managed to completely sidestep is the issue of the legislative and executive branches not being above the law. If we do what you suggest and just remove the need for the judicial branch at all then that's EXACTLY WHERE WE PUT THEM. If a law says "you must do this" and a senator doesn't do it then the judicial branch *can* be used to slap them around for BREAKING THE LAW. It's still up to the citizens to use the judicial branch. The executive and legislative get away with as much as we let them get away with and no more, as it should be.
Selective enforcement does not give anyone the power to interpret the law. It only gives them the power to ignore it at their own peril.
the Judicial branch has no power to penalize, that falls upon the legislative
The legislative branch defines how and to what extent violations of law can be penalized. That is all. The judicial applies the penalizations. Judges wield enormous power. They can throw a senator in jail if given a good enough reason to do so within law. The police are under the authority of the judicial branch.
Just wanted to point out that the quote is good to apply to non-persons, like governments, which have no need for privacy in general, unlike humans. People who work in these organizations do so voluntarily, and they have private lives outside of work.
Eh, whatever. It is pointless to argue about which branch is the most corrupt because none of it qualifies as surprising. This government is a sham all the way from the top to the bottom, left to right. It only marginally qualifies as a democracy at all -- we don't have proportional representation, and huge portions of the government are run by appointments with little oversight.
There are times when you can actually trust your government. You have to, to some extent, or things are ugly. What IS needed, and I agree in this, is that any kind of power needs something that keeps it in check, controls it and acts as a supervisor.
When this system fails, and right now it's anything but working, it is time to distrust it.
When people have faith in their government, the country prospers. When they don't, the economy takes a dive. We can easily see that, take your country, whatever it may be. When was a time of prosperity, and when was a time of stagnation? People who believe in their country (and thus their government) will go out of their way to work for their country and uphold the idea of Kennedy's speech of "don't ask what your country can do for you". When people don't trust their country to have their best interests in their mind, people will not look out for their country but only for themselves. And this in turn is bad for anyone involved, but still better than being a fool.
But trust is not something given freely. Trust is to be earned. And, bluntly, this government has done anything but even tried to earn my trust. So it's time to look out for myself and act towards the government like they act towards me.
We used to have a Bill of Rights. Now, with the rights gone, all we have left is the bill.
"But then you'll get the argument that the Declaration of Independence is an historical document, and has no legal force like the Constitution."
And they'd be right.
"Those will be the same people who tell you that because some individual right is not specifically mentioned in the Constitution or Amendments, you don't have it."
I vehemently disagree with this statement.
It seems you were wrong.
"that things ONLY the Constitution matters,"
Please show me where I said that.
Read my reply to your other post so you can understand why you failed to reply to my argument and instead fabricated one of your own to rail against.
My point was, an argument about rights is more effectively (not EXCLUSIVELY, BUT MORE EFFECTIVELY) supported by quoting the Constitution, NOT the Declaration of Independence.
You pulled "ONLY the Constitution matters" out of your ass, I never made that claim nor any even resembling it.
I could point out that the ACLU's challenge is about behavior before the expiration of the Protect America Act, so its expiration is irrelevant. I could proceed to pick apart the weak assumptions in your argument. But I don't need to do any of that because you have studiously ignored the real issue here.
It really doesn't matter what rhetoric you can use to justify domestic spying programs. As this is a nation of laws, it should be decided according to law. (I recall a Bush admin official claiming that they can spy on anyone at anytime because Bush is the commander-in-chief. You'll forgive me if I'm not convinced by that sort of reasoning.) That's the issue you need to be addressing. When an abuse actually takes place, what legal due process can ordinary folks use to (1) discover the extent of the abuse, (2) receive compensation for damages, and (3) bring to justice those responsible?
Marbury v. Madison established that the judicial power the Court was granted was sufficient to establish that "an act of the legislature repugnant to the constitution is void". It was the first decision to defer to a "founders' intent" argument to read non-textual power into the Constitution -- that of removing invalid laws from the books.
The founders didn't write in the Constitution that illegal laws were to be voided by the judiciary, relying instead on inferior courts being bound by the Supreme Court precedent if the matter again reached their desk at a later point.
And the founders certainly didn't write that interpretation should be based on their perceived intent, rather than on the text of the Constitution they painstakingly crafted. Even in the case that they had, most certainly no intent other than unanimous intent would be an acceptable basis for further argument, considering their wildly differing opinions on many aspects of the Constitution.
Wouldn't you think they carefully considered the impact of each word when crafting the text? Why do we allow our partisan modern judiciary to second-guess them, second-guess our reading skills, and tell us what they think the Constitution 'really means'?
Well, we know why. Supreme Court justices can only be removed from office pursuant to a conviction for violating their oath of office, and yet they have convinced us that they can tell us what the very document that binds their oath of office 'really means'. And we are to respect that utterance as the highest decree in the land. Talk about job security!
Marbury started us down a long, painful road of judicial tyranny. It's not that the judiciary grabs power for itself, as you point out. They already have what they sought, because they are in the position of being the most Godlike political figures on earth.
The tyranny comes when the judiciary, over the past 150 years, has utterly failed to constrain the enumerated powers of the federal government in any meaningful way, has utterly failed to protect the natural rights of the individual to his life, liberty, and pursuit of happiness, and has even had the audacity to roll back Constitutionally enumerated rights in the name of the Drug War, in the name of the Global War On Terror, in the name of Progressivism, in the name of Public Safety, and in general whatever any federal social-engineering effort or boogeyman required. And because of its stature, its passive endorsement of the growth of government is taken as the highest endorsement.
It's long past time we held justices accountable to their oath of office, and stopped allowing them to rewrite their own terms of employment through "interpretation".
LRC, the best-read libertarian site on the web
Either way, you're simply wrong. (You seem to like bold.) If you want to stick to facts, let's review a few.
The Illegal Warrantless Surveillance program, or "The Surveillance Program", TSP, as you so quaintly call it, was in full swing for several years before the "Protect America Act" (your own reference) was even introduced (in early August 2007). Said "Act" was a long belated attempt to retroactively clothe the illegal program the President attempted to pretend he had the authority to authorize, and he was called out on it. He does not have any such authority, and never has. The Foreign Intelligence Surveillance Act (FISA) is VERY explicit about what authority the president has, even in a time of war, and "TSP", is way over the line.
As much as you seem to want to believe, simply renaming a program doesn't make it go away.
Renaming things is a favorite tactic of this administration to keep doing the same things they're told again and again they aren't allowed to do. The long, sordid history of Total Information Awareness is a good example of what I mean, and given the Administration's track record on this, I wouldn't be at all surprised if it was directly related to "TSP", just one more head of the hydra they've created.
I understand your point, its just garbage. Sorry if you feel insulted, but that's the truth.
I can go to court and say "you broke my arm." It may be true, but it makes a huge difference if you just ran out of nowhere and broke my arm or I attacked you first and you were defending yourself. Context is important when interperating things.
How many jokes are in Shakespear that you miss because you don't know the full context of life in his time? Any good English teacher will be able to point out what was comedy in his time and we don't really get the meaning.
Seriously folks, the parent's post here is "Informative" if anything. The only possible reason to mod it "Troll" is if the modders themselves are acting trollish and seeking to repress something they disagree with.
Futurepower(r) is quoting the Congressional Research Service for all love, people! This is part of the blooming Congress! How is it even remotely trollish to quote the findings of a body of the legislative branch of the US government? As noted on Wikipedia, "Congress created CRS in order to have its own source of nonpartisan, objective analysis and research on all legislative issues" (emphasis mine). Hello mods, the cluephone is ringing and y'all done flaked out...
Color me disappointed.
"What in the name of Fats Waller is that?"
"A four-foot prune."
They terrorize our court system and soak the general public for millions of dollars in the process.
I have no use for them.
Athiesm is a religion like not collecting stamps is a hobby.
Too bad it's not my mod points day, but kudos to you sir, well said!
Tyranny isn't the worst enemy of a democracy. Cynicism is.
"Please show me where I said that."
You have yet to do what I asked.
You claimed I made an argument, and have as yet, failed to support your claim, or give any evidence that I claimed "ONLY the Constitution mtters" despite trying to argue as such. It really frustrates me when people like you have to resort to Straw Men to argue against me.
This conversation is over until you provide the quote I asked for.
No, the courts do not have the power to remove somebody from the structure of government. Impeachment falls towards the people, the states, and the legislature, which can render decision based on the legal opinion of the judicial branch.
Which places them in some respect above the law - for example presidential pardons.
But they cannot remove him from office.
Again, I'm not saying that I disagree with the power of Judicial Review, but it is an implied power that goes beyond that specifically outlined in the Constitution - Just like the ability of the president to start combative actions without a formal declaration of War by Congress, the establishment of Federal Reserve, and a laundry list of other powers not enumerated.
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In most cases where there are unjust laws, simply following that law causes you harm, and that is enough to give you standing to bring a case to court. It takes money to sue the government, but that is what the ACLU is for.
This case is unique in that it is challenging government actions performed in secret - you can't prove they are doing them, just that they gave themselves the power to do so, and secondly that the government has declared that if you can prove what they are doing, it is illegal to talk about it.
I understand and appreciate the Supreme Court's desire to only hear cases with standing in most situation, but this it's refusal to hear this case swings the door wide open to allow the Executive branch to operate without any regard to Constitution in the areas where Constitutional review is most needed.
I told you this discussion was over until you did so.
You cannot REASON your way into supporting you claim that I said "ONLY the Constitution matters". You claime dI said it, I did not.
You can either post the QUOTE that supports you, or admit you made that position up to argue against.
So either you're arguing against straw men, or you're a liar.
Either way, this discussion is over until your support your claim, and NO your current post was not in any way support for your claim that I think "ONLY the Constitution matters".
"Please explain why the Constitution is the place to start when arguing rights"
Please post the quote where I claimed only the Constitution matters or admit you made it up. I have no intention of doing anything other than insisitng you support said claim until such time as you do.
I told you this discussion was over until you did so.
I guess you can't support your argument then.
You cannot REASON your way into supporting you claim that I said "ONLY the Constitution matters". You claime dI said it, I did not.
In those exact words, no, but you implied it. I explained that twice now; are you being purposefully dense? Or can't you admin that you are wrong and the Constitution isn't the "best" place from which to argue rights?
"In those exact words, no"
That should have been the end of your post.
"but you implied it"
I did not. Read that again until you understand that what I SAID is what I SAID with no implication at all.
If you're going to tell me what I meant, after you used astraw man to support an exceedingly weak argument, I'll take that to mean you know you have lost this debate.
"explained that twice now; are you being purposefully dense?"
WHO EXACTLY ARE YOU TO ASSUME YOU KNOW WHAT I MEAN BY WHAT YOU READ INTO MY STATEMENTS.
I explained to YOU several times now exactly what I meant. Your continued insistence that I implied something EVEN AFTER I TOLD YOU EXPLICITLY WHAT I MEANT makes it clear you know your argument failed.
Why must you continue to pretend that what you read into my statement trumps my concise explanation of my statement?
I'd say that makes you the one being intentionally dense.
"Or can't you admin that you are wrong and the Constitution isn't the "best" place from which to argue rights?"
I never made that claim either, so why would I defend against another of your obvious straw men?
The President serves as an arbiter of Constitutionality by vetoing the bill, not by rejecting the "execution" of it. If the President wishes to reject the execution, it is up to him/her to draft a new law rescinding the old one. Or do like they've always done and let the Court strike down the law based upon Constitutional arguments.
Which again was a power grab - One could argue that since the power to strike down law was not explicitly given to the Judicial Branch that under the 10th amendment it falls to the states.
Marbury v Madison was a political power play and ultimately it was the Judicial Branch that seized the power.
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"I haven't been lying about what you said."
Making a claim that isn't true = lying. You already admitted I didn't say what you claimed. You lied.
Call it what you want, you're liar and I couldn't care less what you have to say about it.
Also, I didn't read any of the rest of your post as I stopped caring about your opinion the second you lied.
So that's all you can do? Delude yourself into saying I'm a liar? If you had a point, you'd explain it. What better way to prove I'm a liar, but you won't.
So, let me set the stage again; we're discussing "rights," correct? You said this: "Maybe your argument [about rights] would be better served by quoting relevant passages from the Constitution instead."
So explain what you mean; obviously I'm not getting it. What's your point, if I'm so off base? Be a man and explain yourself.
Its funny you mention posting history; you obviously never checked mine. If was constantly lying and posting stram man surely I'd been modded into oblivion by now right?
So drop this "you lied" crap and make your point. Or continue to act like a baby and take your ball and go home, because you can't handle a debate like a man. If I am lying and making strawmen,the best way to shut me up would be to explain exactly what you meant, since you claim I'm not getting it. So go ahead. If you feel your made your point why do you bother to continue replying?
Did you go anonymous becaue you feel like you're the one looking like a fool?