Warrantless Wiretapping Decisions Issued By Ninth Circuit Court

sunbird writes "The Ninth Circuit yesterday issued two decisions in the Electronic Frontier Foundation's lawsuits against the National Security Agency (Jewel v. NSA) and the telecommunications companies (Hepting v. AT&T). EFF had argued in Hepting that the retroactive immunity passed by Congress was unconstitutional. The Ninth Circuit decision (PDF) upholds the immunity and the district court's dismissal of the case. Short of an appeal to the U.S. Supreme Court, this effectively ends the suit against the telecoms. In much better news, the same panel issued a decision (PDF) reversing the dismissal of the lawsuit against the N.S.A. and remanded the case back to the lower court for more proceedings. These cases have been previously discussed here."

Comments

Rights.....

[P-niiice]

Hey, why not? We already have unlimited detention without charges/evidence/probable cause. Might as well go for it all.

NSA case

[oldhack]

The NSA case will disappear in the name of national security or some such.

Impeach

[fnj]

The court is corrupt on the face of this decision. Impeach the judges responsible.

Re:Impeach

[nman64]

Unfortunately, it seems the court's decision with regard to the retroactive immunity is correct. The legal basis to challenge the new law simply does not exist. The blame should rest on Congress for passing such a law.

"It could probably be shown by facts and figures that there is no distinctively native American criminal class except Congress." - Mark Twain

Re:Impeach

[similar_name]

There is Article 1, section 9 of the Constitution

No Bill of Attainder or ex post facto Law shall be passed

Of course courts have interpreted it to not apply to all laws. I guess the wording was too vague.

Nuremburg Defense

[Anonymous Coward]

Great. The Ninth Circuit just made it OK to use "I was just following orders" as a defense, if you're a telecom.

Re:Nuremburg Defense

[tnk1]

I think the point is that Congress can't retroactively make a law that holds someone criminally liable for something that they did in the past before the law was passed, but they *can* and always have been able to make a law that retroactively removes something that was a crime in the past. The idea is to protect people from being held accountable for something that was perfectly legal in the past, but there is no reason to have a protection to keep people as criminals even after the law that criminalized them was overturned.

In this case, the problem is that it does allow illegal activity to be condoned officially later on, as long as they don't get caught until the law is passed. That said, I think it is a political question, not a judicial question. It may well be that a law accidentally criminalizes a well-meaning person who is actually guilty by the letter of the law, but not by the intent of its framers. For that reason, I'd probably have to agree with the court and state that nothing prevents Congress, as the legislative branch, from absolving or nullifying previous criminal behavior by legislation.

Re:Nuremburg Defense

[Transkaren]

Let's be honest here: "I was just following orders" *should* be a valid defense, when you're referring to civilians. Is it *right*? No. But my understanding is that the Telecoms were given apparently-legal instructions by a legitimate authority, obeyed them, and then someone pointed out "Wait, that's not exactly kosher, people..." Did they (the telecoms) screw up? Absolutely. But there was an assumption that the telecoms made that the people in legal authority would not overstep their bounds. It's the same assumption we as civilians make every day - and the reason why we as a society prefer come down like a ton of bricks on anyone we find that violates that trust. Not because the crime itself is necessarily horrible (though it frequently is), but because by committing the crime through their offices, they stain the honor and/or sanctity of those offices. This isn't even entirely a governmental thing; it also applies to Doctors, Engineers, Religious teachers, Lawyers, and any of a thousand other situations. If a person with apparently legitimate authority tells you to do something that doesn't seem ridiculously out-of-bounds for their authority and you do it, you damned well should be protected.

Re:Nuremburg Defense

[Sloppy]

The 9th circuit isn't doing that; Congress did it in 2008. That was the very intent of the FISA amendment, and there really wasn't any ambiguity about it. Many people simply hated it at the time. (Though most didn't hate it enough to vote against the people who did it -- both McCain and Obama who supported it as senators, combined got an overwhelming majority of the votes for president. Doing what they did, didn't destroy their campaigns.) Don't blame the court for that. The AT&T suit really ought to be dead; the time to fight for justice was 3.5 years ago and we collectively decided it wasn't important.

We need to accept and take responsibility for that decision. It is hypocritical to vote against justice and still demand it.

Re:Nuremburg Defense

[Kjella]

For that reason, I'd probably have to agree with the court and state that nothing prevents Congress, as the legislative branch, from absolving or nullifying previous criminal behavior by legislation.

So far that's fine but Congress should not be able to absolve breaking the constitution without amending the constitution. So if your fourth amendment rights were violated, Congress shouldn't have the power to pass a regular law granting immunity to those who broke it. In that case you might as well use the constitution as toilet paper.

Re:Nuremburg Defense

[shaitand]

The problem is that the warrant-less wiretapping violates the constitution and congress lacks the authority to pass a law that allows it therefore congress cant just allow someone to do it and then pass a law granting them immunity after the fact either.

Quite frankly they lack the authority and any judge worth their salt would toss the typical "we did it in the public interest" argument out. Clearly it is NOT in the public interest to subvert the public's right as guaranteed by the constitution.

Re:Nuremburg Defense

[shaitand]

"that doesn't seem ridiculously out-of-bounds for their authority"

And theres the rub. Warrantless wiretapping is clearly out-of-bounds for any level of government. Even if congress passed a law allowing this, the president signed it, his executive branch enforced it, and the supreme court affirmed it (and PUBLIC legal defense against the government attempts is the first place the telcos should have gone with this).

Every citizen has an obligation to defend our constitution from government tyranny when they see it. By shedding blood or having their blood shed if necessary.

Re:Nuremburg Defense

[hedwards]

Due diligence. Everybody who has grown up in the US has at some point come into contact with the notion that law enforcement need warrants. I'm not sure how they could possibly believe that there weren't any laws being broken when they weren't being provided with any documentation.

These are organizations that have attorneys and if they weren't aware of the illegality of it it was purely because they were specifically looking the other way.

Re:Nuremburg Defense

[Anonymous Coward]

Great. The Ninth Circuit just made it OK to use "I was just following orders" as a defense, if you're a telecom.

No, what the Ninth Circuit said was, "if the US Government asks for your assistance in a national security matter and you act in good faith to comply with the existing legal requirements, you can't be prosecuted even if the Government is later found to have acted illegally." Which is as it should be. We want the private sector to cooperate with the government on national security matters. It's a bad thing to ask companies to cooperate with the government and then try to jail them later when they do even after they've tried in good faith to comply with all of the legal requirements existing at the time. Do that enough times and pretty soon the private sector will never cooperate willingly with the government under any circumstances even to the detriment of national security.

If you want to hold somebody responsible, go after the government bureaucrats who ran the program and their lawyers who gave suspect legal advice at the time.

Re:Nuremburg Defense

[Shakrai]

So if your fourth amendment rights were violated

Where's your cause of action though? Presuming your rights were violated by the Government collecting the meta-data of your phone calls; did the Government use this data in any criminal prosecutions? If it did then you'd be able to raise the 4th amendment as a defense; it might not be successful but you could raise it. I'm not so sure you can just sue the Government and/or telecoms after the fact when the data was never used against you though.

Understand that I'm not saying I agree with any of this. For better or worse this is the way it is though.

Once again, thank you President (then Senator) "I will filibuster any bill containing telecom immunity" Obama. Meet the new boss; same as the old!

Re:Nuremburg Defense

[Khyber]

"did the Government use this data in any criminal prosecutions? If it did then you'd be able to raise the 4th amendment as a defense"

No, we use the 4th amendment as an OFFENSE, not a defense.

Those rights exist to give us protection from the government, defensively or offensively.

The proper thing here is a major class-action suit by the PEOPLE, not by some lawyers.

Real people need to stand up, riot, and make it known that this will no longer be tolerated.

And sadly, there's no peaceful way around this. Civil war *MUST* happen in order for anything to get better.

Re:Nuremburg Defense

[LandDolphin]

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights,[74] that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

Re:Nuremburg Defense

[snowgirl]

You raise a good point here. Traditionally, it's been well-upheld that a search isn't illegal if the person had immunity from anything that the government found. Namely, the remedy for an illegal-search is that the evidence and any further evidence collected solely as a result of that evidence is thrown out and cannot be used against you.

No one was ever charged with a crime as a result of these wiretaps, so there's no remedy to grant.

Like it or not, as one person said, Congress should not be able to absolve a constitutional violation, but they didn't. They absolved a STATUTORY violation, that of wiretapping. Wiretapping is not immediately a constitutional issue.

Re:Nuremburg Defense

[H3lldr0p]

No one was ever charged with a crime as a result of these wiretaps, so there's no remedy to grant.

Are we certain about that? I thought that part of the problem was the circular logic used in this case. ie, The government will not let you know if you were spied upon because they might be building a terrorism case against you. As far as I can recall, that was the whole of the initial justification and why congress had to act to pass the law.

So how do we know?

The obvious and easy remedy would be to declare the law null and let the public see for themselves what was done on their behalf. That is the only way to be certain that there was no cause for concern and that there is no other remedy needed in this and every other case brought up by such actions or laws passed by Congress.

Re:Nuremburg Defense

[element-o.p.]

No.

I agree that we should come down like a ton of bricks on those who overstep those bounds, but each and every one of us has a moral and ethical obligation to weigh every request, order or demand from authority before complying. Doing the right thing is not always easy, but that's life. If people, as a whole, would grow a collective backbone, those in authority would be far less inclined to overstep their bounds because they would have the proverbial snowball's chance of succeeding with whatever it is they are trying to do that is unethical or dishonest. As long as we keep complying with authority because "I was just following orders" we are willing accomplices in their evil. That's not the way I want to live my life.

Re:Nuremburg Defense

[Dripdry]

How about when they determine that you might be connected to suspected terrorist activity, and they make you "disappear"? Or kill you without a trial? That little court system you got there is meaningless when the government decides to simply ignore it.

Re:Nuremburg Defense

[fyngyrz]

The 4th amendment directly defines what is reasonable: "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."

Anything OTHER than that is unreasonable, constitutionally speaking. Look to the 1950's telecom laws for 100% confirmation that this was well understood by both congress and the courts.

Times sure have changed

[Anonymous Coward]

Richard Nixon would have loved this era.

Re:Times sure have changed

[betterunixthanunix]

Richard Nixon had nothing on the Bush or Obama administrations. The past two presedencies have been the most secretive and constitution-breaking in American history.

Re:Law Enforcement usually wins

[SJHillman]

Given the state of the laws in effect today, you'd be hard pressed to find someone who hasn't committed some kind of offense within the last month. It's more like "You're a criminal but you have nothing to be concerned about unless we want to enforce it"

Is it really any surprise...

[PortHaven]

That a government acting against it's Constitution will have courts that uphold acting against it's Constitution.

Constitution is naught but a museum piece. We have ceased to recognize it by passing laws and court decisions that by-pass it entirely.

Re:Is it really any surprise...

[DoofusOfDeath]

The courts appear to have decided that threats from alleged terrorists trump the threat of tyranny by the executive branch. That's why State Secrets doctrine so often wins, and that's why the courts have protected the NSA from judicial scrutiny in general.

I fear that with the eternal War on Terror, they've confused which threat is greater.

Nothing unexpected here

[willaien]

Nothing to see here:
Government instructs company to break the law. Government then gives company immunity.

What did you expect? For them to take the immunity back away?

Your rights as a citizen are only important in so far as you vote for the right guy or spend money. They could care less otherwise.

Re:Law Enforcement usually wins

[Tsingi]

Given the state of the laws in effect today, you'd be hard pressed to find someone who hasn't committed some kind of offense within the last month. It's more like "You're a criminal but you have nothing to be concerned about unless we want to enforce it"

Not to mention that many many law enforcement agents are themselves guilty of violating the law.

Re:Law Enforcement usually wins

[SJHillman]

The point is that you have committed violations of the law... it doesn't matter if they're gross violations or even if the common person realizes they're violations. Most people commit some sort of violation every day (Ever go 56 in a 55 zone? That's breaking the law). Just because it's inconsequential, unenforced or otherwise ignored doesn't mean you're not breaking a law. We're heading in a direction where everything is illegal and we just accept a state that can arrest you for anything if they decide they want to.

Freedoms

[DaMattster]

Here is my 0.02 cents: neither government nor the courts are to blame, we the citizenry who elect our officials are to blame. We have the media reporting a disporportionate amount of bad news (crime, terrorism, etc) because it sells. In turn this leads people to conclude that times are not getting safer but more dangerous and, in some cases, may actually encourage criminal copycat behaviours because of the basic human tendency to jump to conclusions. The reality is that crime hasn't really skyrocketed and by all accounts might actually be rising at a much lower rate when compared with the population. We just have a distorted perception of rampant crime and danger as a result of what the media reports. So people, and in particular senior citizens due to diminished strength and mobility, experience an irrational amount of fear. Thus we turn to our elected officials to ask for greater safety and security in the form of more laws and restrictions. Hence, many of these laws are poorly written and concieved because they were born out of a knee jerk reaction versus careful thought as to whether these laws are: (a) really necessary and/or (b) will really achieve the end result. Politicians that are wise to the demands of their constituents will of course play the get tough on crime with the hope of winning votes and even push through legislation toughening sentences or expanding the dragnet of what constitutes criminality. In summary, a vicious cycle is created that no one is really able to break unless there were a sudden breakout of common sense. I would admire the politician that would take the "not get tough on crime stance" because crime is not rampant. I would admire the politican that would take the step back and reflect the negative effects of passing some laws instead of being concerned about some short term gain in the polls. In reality, we've no one to blame but ourselves. The courts are doing what we are basically asking them. We are willingly giving up liberty for the security that we are asking for. Thomas Jefferson noted that, "Those that would give up some liberty to gain security get none and deserve neither."

Re:Freedoms

[JustNiz]

Wait... you seriously think we get a free choice to elect our officials?
At best we get a choice between 2 or 3 identical people who the system has already made sure will all promote the status quo.

Re:Freedoms

[jamstar7]

How in HELL are the citizens to blame when they've been cut out of the loop for decades?

Re:Good decisions

[compro01]

I can't think of a single case in which corporate civil disobedience has succeeded.

I seem to recall there being a little phone company called Qwest saying "No. Come back with a warrant.".

Impeachment isn't an option

[fyngyrz]

The supreme court, as thus far constituted in many different ways, doesn't understand ANY part of "no" or "shall not." Nor has the executive to date, nor congress.

Examples abound.

The problem is, the constitution has no teeth: there are no penalties for any one, or any combination, of the executive, judiciary, or congress violating the constitution's explicit directives (and their oaths as well.) None whatsoever. Furthermore, even should something (magically!? accidentally!?) be declared correctly unconstitutional, all of the harm done between the implementation of the legislation and its demise is rarely undone, compensated for, or otherwise given the attention it needs. As for the actual malfeasance, there's no provision for impeachment, reprimand, fine or imprisonment. Nothing.

Basically, the government is operating well outside its constitutionally authorized bounds, and there isn't a single thing that can be done directly about it -- from the bottom. So vote for Ron Paul -- because he can jam the process up from the top, and it appears he is more than willing to do so.

Re:Impeachment isn't an option

[Jane Q. Public]

There is one "penalty" other than impeachment -- or rather, remedy. State nullification.

Now, before anybody starts going all mainstream-media on me and telling me what a ridiculous and dangerous idea State nullification is, let me tell you that I have done my homework and am very familiar with the history of the concept.

You should know that state nullification is not a "racist" idea. One Southern governor -- once -- threatened to use it against the Civil Rights act, but never carried through on his threat. It is true that the South used it against extortionate tariffs imposed by the Northern-controlled Congress at the time, but that actually had little or nothing to do with slavery.

However, nullification WAS used -- successfully -- by Northern states against the Fugitive Slave Laws. If you want to read a moving story that is most definitely non-racist, look up the story of Joshua Glover.

But the fact is that states, even today, make use of nullification all the time. Every year. How do you think the States get away with Medical Marijuana laws, in direct defiance of the Feds? The Federal government has announced that it will not try to enforce Federal laws as long as the state laws are complied with. Why? Not because it has any good intentions or because it is willing to relinquish control, but because they know they have no choice. There is no way the Federal government can fight the states. It simply isn't possible.

There is also a very sound legal and Constitutional basis for state nullification. Read the history of the ratifying convention in Virginia. And also the later Virginia and Kentucky Resolutions of 1798, and Madison's Report of 1800 to the Virginia legislature. The fact is that nullification is an inherent right of States, in cases of unconstitutional laws. The States do not have a "right" to nullify anything they feel like... it has to be a law that has been deemed -- by the State -- to be unconstitutional.

A number of states now have formally nullified Obama's "personal mandate" and other aspects of the Federal health laws.

At least 2 states -- maybe 3 by now -- have passed laws stating that if a firearm is manufactured within that state, and stays within that state, that Federal laws do not and cannot apply. In one state they even made it a Felony for an agent of the Federal government to try to enforce such laws. Punishable by 2 years in state prison.

There are remedies for an over-reaching Federal government. And never forget that the Supreme Court is a branch of the Federal government, and is as susceptible to power-grabbing and over-reach as any other branch. As such, some of the decisions regarding a "supreme" Federal government over the States were actually never within its authority to make. The Supreme Court was never intended to be the "supreme" authority when it came to deciding what powers the Federal government should have. Those questions were decided by the States themselves when they formed the Constitution, and the States have never waived that power, SCOTUS bedamned.

"The government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself." -- Thomas Jefferson, re: the U.S. Constitution, Kentucky Resolution of 1798

Madison's words, from the Report of 1800:

"... it is objected, that the judicial authority is to be regarded as the sole expositor of the Constitution in the last resort; and it may be asked for what reason the declaration by the General Assembly [of Virginia], supposing it to be theoretically true, could be required at the present day, and in so solemn a manner.

"On this objection it might he observed, first, that there may be instances of usurped power, which the forms of the Constitution would never draw within the control of the judicial department; secondly, that, if the decision of the judiciary be raised above the authority of the sovereign parties to the Constitution, th