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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.
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.
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
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.
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.
> 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
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."
Supreme Court writes: "We don't believe in imaginary problems."
Don't trust anyone under thirty.
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
512 MB RAM, 20 GB disk, 200 GB transfer, five datacenters. $19.95/month.
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?
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.
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...
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?
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a US citizen who is tried using evidence obtained in this manner would finally have standing to contest the government's actions
What makes anyone think that illegal wiretapping is about giving people fair trials? They're not even concerned with convicting suspected terrorists, and the fact that these wiretaps are too dubious to deserve even FISA warrants should make it clear that terrorists aren't the target.
FISA was created after Nixon's attempts to use espionage for political gain. If Bush is doing the same thing then the illegally obtained results won't be seen by judges. Anything incriminating will be leaked to the media or used to anonymously blackmail the target; anything innocent will be exploited by campaign strategists. Even if the most damaging use of an unwarranted wiretap's results is a prosecution, it won't be done by introducing unconstitutionally obtained evidence in court. They'll use "anonymous tips" to launder the results to get seemingly-legit evidence instead. The "fruit of the poisoned tree" rule won't help when the connection between the evidence and it's original source has been hidden from sight.