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

[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

[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

[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

[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

[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.

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: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: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.".