US Gov't Can't Be Sued For Warrantless Wiretapping

Wired has an article about a ruling from the 9th U.S. Circuit Court of Appeals saying the government can't be sued over intercepting phone calls without a warrant. The decision (PDF) vacated an earlier ruling which allowed a case to be brought against the government. The plaintiffs in the case argued that the government had implicitly waived sovereign immunity, but today's ruling points out that it can only be waived explicitly. Judge McKeown wrote, "This case effectively brings to an end the plaintiffs’ ongoing attempts to hold the Executive Branch responsible for intercepting telephone conversations without judicial authorization." The ruling does, however, take time to knock down the government's claim that the case was brought frivolously: "In light of the complex, ever-evolving nature of this litigation, and considering the significant infringement on individual liberties that would occur if the Executive Branch were to disregard congressionally-mandated procedures for obtaining judicial authorization of international wiretaps, the charge of 'game-playing' lobbed by the government is as careless as it is inaccurate. Throughout, the plaintiffs have proposed ways of advancing their lawsuit without jeopardizing national security, ultimately going so far as to disclaim any reliance whatsoever on the Sealed Document. That their suit has ultimately failed does not in any way call into question the integrity with which they pursued it."

Comments

It's good to be the...

[KingSkippus]

It's good to be the king^H^H^H^HU.S. Government!

Re:It's good to be the...

[Jeremiah Cornelius]

There is no law, except as a rhetoric for justifying power.

You are not a citizen - but merely a subject.

It is 1164 AD - with Nike shoes and a Prius on the curb.

Re:It's good to be the...

[LordLimecat]

Does anyone seriously think hyperbole like this helps anyone? What are you hoping happens, that people take your nonsense seriously and decide that theres nothing they can do to fix things?

No, but of course you're right, we collectively have it about as bad as anyone has had it in 900 years. Never mind the fact that we along with a few others enjoy privileges that others both current and historical would give their lives for; lets count those as rubbish and bemoan our fate. THAT will accomplish a lot.

Re:It's good to be the...

[formfeed]

Does anyone seriously think hyperbole like this helps anyone?

But of course!
Hyperbole is the bread of the downtrodden masses. It is the axe that will fall on the neck of the oppressor. It is the light that brightens the future, the candle by which we read the manifestos on our ipads.

Re:It's good to be the...

[Anonymous Coward]

Never mind the fact that we along with a few others enjoy privileges that others both current and historical would give their lives for; lets count those as rubbish and bemoan our fate.

Exactly. We can only start complaining the very moment they show up and load us into cattle cars bound for the gas chambers. Until they drop the cyanide canister in, everyone needs to STFU and consider themselves lucky it's not worse off.

By the way, you're retarded.

Re:It's good to be the...

[AchilleTalon]

Modern version should read:

There is no law, except as a rhetoric for justifying manipulation.

You are not a citizen - but merely an object.

Re:It's good to be the...

[davester666]

You are NOT an object. That is way too passive.

You are a consumer.

Re:It's good to be the...

[Stirling Newberry]

It isn't hyperbole when it is true.

Re:It's good to be the...

[Anonymous Coward]

There, there, little slave. All the privileges we give you are because we love you.

Re:It's good to be the...

[LordLimecat]

As a number of lawyers have commented, Sovereign immunity has been around for hundreds of years. That being the case, its a GOOD THING that an appellate court isnt throwing hundreds of years of legal history out the window and legislating from the bench.

Re:It's good to be the...

[orgelspieler]

Does anyone seriously think hyperbole like this helps anyone?

But of course! Hyperbole is the bread of the downtrodden masses. It is the axe that will fall on the neck of the oppressor. It is the light that brightens the future, the candle by which we read the manifestos on our ipads.

Wait... I thought that was metaphor.

Re:It's good to be the...

[redlemming]

Legal professionals, as a class in society, are in a position of ethical conflict of interest with respect to the contents of the legal system.

A complex, confusing, or contradictory legal system (or even one that just seems to have or is perceived to have these qualities) creates an artificial demand for the services of legal professionals.

Most legislators, most legislative staff members, all judges, all defense attorneys, and all prosecuting attorneys are legal professionals.

Hence, effectively the people writing the laws, and the people enforcing those laws, are all in a position to benefit -- at least in the long term -- by issuing orders, or creating laws, rules, principles, and/or precedents that make the legal system complex, confusing, and/or contradictory.

Any principal of law that allows government officials to violate fundamental rights without penalty is equivalent to saying "rights are important but actually they aren't" -- a contradiction.

The fact that something has been in the legal system for hundreds of years does not make it legitimate. Hundreds of years of legal history may largely consist of hundreds of years of bad decisions and substantial amounts of injustice-enforced-by-law, resulting from conflicts of interest both on the part of the parties making and those enforcing the rules.

There are very good reasons why James Madison made the Bill of Rights an open-ended document (by means of the 9th and 10th Amendments, rights retained by and reserved to the people), a point that legal professionals who swear oaths to uphold the Bill of Rights might want to remember. Madison himself successfully fought the state of Virginia in the years prior to the Founding when it attempted to illegally tax certain religions in violation of Virginia's Bill of Rights: he was certainly very aware (as were the people who eventually elected him to Congress) of the need to be able to take on government at any level when it acts contrary to fundamental rights.

so the guvmint has no one to answer to

[Anonymous Coward]

is that the conclusion i'm reading here?

Re:so the guvmint has no one to answer to

[mwvdlee]

I'm sure they have to justify their action to their corporate owners come next election.

Re:so the guvmint has no one to answer to

[BMOC]

I thought that's what their stock portfolio reports were for. I mean, how else are all these elected officials becoming rich?

Re:so the guvmint has no one to answer to

[BMOC]

FTA:

“Under this scheme, Al-Haramain can bring a suit for damages against the United States for use of the collected information, but cannot bring suit against the government for collection of the information itself,” Judge M. Margaret McKeown wrote for the majority. She was joined by Judge Michael Daly Hawkins and Judge Harry Pregerson. ”Although such a structure may seem anomalous and even unfair, the policy judgment is one for Congress, not the courts.”

Huh? The judiciary is abdicating its own power here. It is the actions of the executive in violation of clearly spelled out laws that is the problem here. Are they suggesting that government workers cannot be sued for clear negligence w.r.t. the law because Congress did not authorize it? Did the lawyers in this case sue the legislative branch, or the executive? They should have sued the executive, and they should have won.

Re:so the guvmint has no one to answer to

[tnk1]

Policy is always set by the legislative branch, the judicial can interpret it, and weigh it against the Constitution and see if it is overridden, but that is it.

If the court perceives that to render a judgement would effectively be legislating, they are not permitted to do that, even if they feel the current state of the law is unfair. It is Congress' job to fix bad laws that are not unconstitutional, not the courts'.

If the law made the situation possible which the Executive took advantage of, the court cannot alter the situation without some higher law to override it.

Re:so the guvmint has no one to answer to

[jpapon]

That's the point, the government cannot be sued directly by a citizen, since the government has sovereign immunity.

The court is merely saying that unless the government explicitly decides to waive sovereign immunity, they cannot be sued. The courts do not decide when sovereign immunity has been waived, that is left up to the legislative or executive. This has always been the case in the USA.

Re:so the guvmint has no one to answer to

[Kjella]

That's the point, the government cannot be sued directly by a citizen, since the government has sovereign immunity. The court is merely saying that unless the government explicitly decides to waive sovereign immunity, they cannot be sued. The courts do not decide when sovereign immunity has been waived, that is left up to the legislative or executive. This has always been the case in the USA.

That part is fair enough, but shouldn't the constitution be considered explicitly waiving immunity? Because otherwise the government can tap dance over the 4th amendment's grave and nobody can sue them. In fact, the whole Bill of Rights would be useless.

Re:so the guvmint has no one to answer to

[Dragonslicer]

If the law made the situation possible which the Executive took advantage of, the court cannot alter the situation without some higher law to override it.

Some higher law like the Fourth Amendment?

Re:so the guvmint has no one to answer to

[pdabbadabba]

Lawyer here. There is nothing at all new about the doctrine of sovereign immunity. It goes back hundreds and hundreds of years. As a U.S.-trained lawyer, there is nothing at all surprising about any of this. It may be that we should abandon the doctrine -- I've never heard anyone give a very satisfactory explanation for it -- but it is probably unfair to blame the 9th circuit for not doing so. It would have been a very major break with hundreds (thousands, really) of years of legal tradition and almost certainly would have been reversed summarily by the Supreme Court.

It can get a little bit complicated but basically, you can't sue the government FOR DAMAGES unless the government has consented. For some reason, the government has actually consented to suit in a number of situations in the Federal Tort Claims Act (fun fact: passed after a B-52 crashed into the Empire State Building in the 1940s). This typically extends to suits against government themselves and suits against officials in their so-called official capacity.

But there are two other possibilities: you can still sue the government for non-damages remedies like (typically) an injunction. You can also sue government officials in their individual capacities, but they typically enjoy some degree of immunity themselves (if they didn't, all the law suits would dissuade anyone from working as a federal official).

Re:so the guvmint has no one to answer to

[LordLimecat]

Just in case you missed it:

It is Congress' job to fix bad laws that are not unconstitutional

Where Im from, we count the 4th amendment as part of the constitution. If a law violates it, we already have a clear remedy in the court system.

Re:so the guvmint has no one to answer to

[LordLimecat]

Because otherwise the government can tap dance over the 4th amendment's grave and nobody can sue them.

From what Im gathering, you CANT sue the "government", but you CAN try to get the courts to strike a law down. IIRC, the recent healthcare thing in the supreme court wasnt a case of the Gov't being sued, but of the law being tested for constitutionality. Unless I am mistaken-- and I might be-- there would have been no penalty for the government if the law had been stricken down other than the political ramifications.

Re:so the guvmint has no one to answer to

[Anonymous Coward]

There's clearly a problem with law then. For if, as you say, you cannot sue the government for damages, you are effectively left with no recourse. The reason is because there's no check-and-balance on government classification of what it is doing. So the federal government creates a classified information space, and does what it wants within this space. They violate the constitution at will. Under this sovereign immunity doctrine, the public with a clear understanding of what is going on, cannot sue the government for damages. However, they also cannot effectively bring criminal charges without whistleblowers because you have no evidence and no suspects. So as long as the federal government remains immune from lawsuits, and no whistleblowers appear, the feds can do whatever they want and the general public cannot legally stop them until voting day.

Re:so the guvmint has no one to answer to

[anagama]

I see the difference but really, it makes the constitution pretty hollow when all the courts can do is strike down a law but can in no way hold the Feds responsible for violating the constitution. The courts can strike down all the laws they want, but what is a citizen to do when the Feds violate the constitution? Nothing. Sovereign immunity trumps everything I guess.

The drug war got the ball rolling on the erosion of civil liberties, GWB ran with that after 9/11, and Obama has totally shredded the constitution with his policy of "I AM the due process in the 'no person shall be deprived of life without due process of law' provision".

Re:so the guvmint has no one to answer to

[xenobyte]

I'm sure they have to justify their action to their corporate owners come next election.

The premise of the SyFy channels new show "Continuum" seems more and more real...

Re:so the guvmint has no one to answer to

[jpapon]

You can challenge a law in court, but you cannot bring suit against the President for enforcing a law. This is the only way that any of this works.

If private citizens could bring suit against the President and won, who would enforce the decision if he refused to comply? The army that he is Commander in Chief of?

If the courts could convict the President, wouldn't that give them the power to remove the President from power (since you can't be President from a prison cell)? Isn't the power to impeach very specifically given to the Legislative branch?

The courts can strike down all the laws they want, but what is a citizen to do when the Feds violate the constitution?

Vote them out of power, the way the system was designed. The President can't govern if he's constantly being brought into court by private citizens who don't agree with his decisions.

Re:so the guvmint has no one to answer to

[smooth wombat]

If the court perceives that to render a judgement would effectively be legislating, they are not permitted to do that,

Tell that to John Roberts because that's exactly what he did when he decided that forcing people to pay for other people's medical bills is a tax even though the word tax was not used in the legislation and the President himself has said the bill is not a tax.

Roberts legislated from the bench when he decided to make a political rather than legal decision, effectively handing the presidency to Romney.

Re:so the guvmint has no one to answer to

[moeinvt]

The original FISA Act made it a CRIME with both civil and criminal penalties for an employee of the Federal government to spy on U.S. citizens without obtaining a warrant.

The FISA law had provisions for what were deemed immediate threats (for example, surveillance could start immediately provided that a warrant was obtained shortly thereafter). The FISA court was also secret and had a policy of basically rubber-stamping warrant applications, but there was at least some modicum of judicial oversight.

Bush made the absurd claim that the AUMF gave him permission to bypass the FISA court and engage in warrantless surveillance. He and his cronies need to be arrested and prosecuted. It tells you how low we've sunk when we can talk about "warrantless surveillance" as if it were no big deal.

Re:so the guvmint has no one to answer to

[David Chappell]

If the court perceives that to render a judgement would effectively be legislating, they are not permitted to do that,

Tell that to John Roberts because that's exactly what he did when he decided that forcing people to pay for other people's medical bills is a tax even though the word tax was not used in the legislation and the President himself has said the bill is not a tax.

Roberts legislated from the bench when he decided to make a political rather than legal decision, effectively handing the presidency to Romney.

Whether we agree or disagree with Roberts' decision, he wasn't legislating from the bench. He didn't change the way the law worked. He simply determined that it didn't have to be struck down. Calling it a tax doesn't make the law suddenly operate differently.

As for whether it is a tax or not, does it really matter whether the word appears in the law or what the president says about the question? Judges are supposed to be able to see through the P.R. spin and figure out what the real facts are. This judges says that if it walks like a tax and quacks like a tax, it is a tax.

It is of course ironic that Roberts' rejected the not-a-tax claim of the law's supporters and then used this as a basis to uphold their law. But, this is a perfectly valid way for a court to solve a problem. One can disagree with the decision all one wants, but it was his to make.

Re:so the guvmint has no one to answer to

[smooth wombat]

One can disagree with the decision all one wants, but it was his to make.

No, it's not. Nowhere in the law did it say it was a tax. During the discussion of creating the law, the word tax was not used. The President even made repeated efforts to state it wasn't a tax. Roberts interpreted the law to mean something which none of the people who pushed for the law said it was.

He did the very thing that conservatives whine all the time about judges, which is he was an activist judge. He read into the law something which wasn't there.

Had it been a tax, it would have been spelled out clearly in the legislation. That word, tax, is nowhere to be found. Therefore, it is not a tax, Roberts chose politics above law and he did legislate from the bench.

Re:so the guvmint has no one to answer to

[David Chappell]

One can disagree with the decision all one wants, but it was his to make.

No, it's not. Nowhere in the law did it say it was a tax. During the discussion of creating the law, the word tax was not used.

Think of it this way: what if it really is a tax and the supporters of the law were trying to fool all of is into thinking that it isn't?

What if a politicial condidate promised "no new taxes" but then supported a law which required the owner of a newly-purchased car to pay a 2% "fee" (over and above the sales tax) when registering it for the first time? Would he have kept his campaign promise?

Re:so the guvmint has no one to answer to

[pellik]

Don't be fooled, all TV wrestling is fake.

Re:so the guvmint has no one to answer to

[mcgrew]

Roberts legislated from the bench when he decided to make a political rather than legal decision, effectively handing the presidency to Romney.

Whose own Massachusetts health car bill Obamacare was based on? And that's the single thing people will be voting for this election? The economy has no part of it? The fact that Romney was getting rich by shipping jobs overseas and destroying American companies? The Romney that has the same MBA as the President who crashed the economy and started the mess we're in? The Romney who refuses to loose his tax returns? The Romney who said "I like to fire people?" The Romney who just yesterday made the same stupid mistake the mass murderer in Wisconsin did? The same Romney whose plan to fix the economy is to tax the middle class more and himself less? The same Romney that pissed fourigners off with his retarded statements about their countries when he was visiting them? The same Romney who seems even more like Bush than Obama does?

Have you seen the polls? Last I saw, Romney was only ahead in one of the swing states, and those are the states that will decide the election. What does Romney have going for him, besides the fact that he was the least insane and evil of all the other Republican candidates?

Re:so the guvmint has no one to answer to

[pdabbadabba]

Funny, I would have thought that the worse offense would be correcting a pointless detail, while adding nothing else to the conversation other than ad hominem attacks. I of course know there were no B-52s in the 1940s. It was a typo. B-52, B-25...see the similarity?

Re:so the guvmint has no one to answer to

[dffuller]

What does Romney have going for him, besides the fact that he was the least insane and evil of all the other Republican candidates?

Well, he does have that magic underwear.

Re:so the guvmint has no one to answer to

[sociocapitalist]

You can also sue government officials in their individual capacities, but they typically enjoy some degree of immunity themselves (if they didn't, all the law suits would dissuade anyone from working as a federal official).

Fuck them. We need accountability and not immunity. If they can't be responsible and follow the law in what they do then they shouldn't be in the job in the first place.

Re:so the guvmint has no one to answer to

[Sinical]

That word, tax, is nowhere to be found. Therefore, it is not a tax,

Or maybe he cut through the crap. It was a tax, but those in the legislative and executive branches were too chicken to say it. Just because the President and Congress want to call taxes "ponies" does not mean that taxes are ponies.

Re:so the guvmint has no one to answer to

[pdabbadabba]

I sympathize, though I think you may underestimate the number of meritless lawsuits brought against federal officials. I happen to be a federal official with absolute immunity and I can tell you that, even though I know a great deal about the law and I have sworn an oath (which I take very seriously) to uphold the constitution, I would have serious reservations about doing this job if I were not immune from suit for damages. And my job is probably much more appealing than a lot of other government positions out there, like U.S. Marshall, customs agent, etc.

A little more information might help too: very high government officials (like the president, judges, etc.) get total immunity for acts they perform within the scope of their duties. Presidents also get immunity from suit while they are in the office to prevent the endless political disruptions it would cause.

More run of the mill federal officials (including law enforcement officers) get a much more limited immunity. They can still be sued for constitutional violations but only if they were personally involved in the violation and the conduct was such that a reasonable person would have known it was illegal. So, for example, if a cop shows up at your house, breaks down the door, and beats you for no reason, you should have no problem suing her for damages. If the situation is more ambiguous, like the NYPD's stop and frisk program (which, for the record, I think is illegal, just not unambiguously so), then the officers cannot be sued for damages. But there is still nothing stopping you from going to court to get an injunction to put a stop to the program -- and if they violate the injunction then they're exposed to all the usual penalties for contempt.

(By the way, since this is starting to get a bit specific, a reminder: I am definitely not your lawyer, I am almost certainly not admitted to the bar in your jurisdiction, and you should not rely on anything I say as legal advice. It may well be incorrect, or otherwise unwise to take seriously. It this were actual legal advice, I would research all of this to make sure it was absolutely correct, and not just write what I vaguely remember from law school. But this is just a post on slashdot.)

Re:so the guvmint has no one to answer to

[sociocapitalist]

Thank you for your reply -

I can see how frivolous lawsuits could potentially disrupt the jobs of federal officials. I could also see how non-frivolous lawsuits might also, more justifiably, disrupt what federal officials are doing if it is in fact illegal.

I could see being immune while in office to mitigate the first, but cannot justify total immunity because of the second. I want people in office to be held responsible for their actions as I think that the way things are at the moment leads to a general lack of accountability that can only lead so at least some people in such positions of power and authority, and with such immunity, doing things that they shouldn't be doing.

(disclaimer read and understood and a side note to say that I appreciate any lawyer who writes as clearly as you do)

Is anyone surprised?

[logicassasin]

Really, {add tfh}this kind of thing has been going on for decades and will continue for the foreseeable future without repercussions. It's the government, can we not all expect there to be some amount of collusion between the branches to keep this type of activity going in the name of "national security"?{remove tfh}

Re:Is anyone surprised?

[cavreader]

Congress passed a unambiguous law before the US entered WW2 prohibiting wire tapping to catch potential German agents in the US and 15 minutes later Eisenhower wrote an executive directive to ignore the law. If the US had been defeated in WW2 he would have been prosecuted and most likely convicted but that didn't happen and Congress decided to pretend they never passed such a law. The US constitution and associated laws are not a suicide pact. Even more astonishing is that presidents Carter, Bush1, Clinton, and Bush 2 were asked what they would have done under the same situation and all of them said they would have did the same thing. Even Obama is willing to make decisions that are technically prohibited by law but laws do not cover all situations in certain circumstances. Especially when national security is involved.

Re:Is anyone surprised?

[Anonymous Coward]

"Eisenhower"? You sure? Before WW2, Eisenhower was a newly promoted Brigadier General who'd never held a command position and certainly wasn't signing any such documents.

Re:Is anyone surprised?

[claytongulick]

This disturbs me. The phrase "the Constitution is not a suicide pact". Deeply.

The first time I heard this was from full Commander in the Navy, while I was enlisted. She said "The Constitution isn't a suicide pact". As an aside, she was very liberal.

I was speechless. Here we were, on a military base, surrounded by Marines who were being deployed to quite literally give their lives to defend the Constitution, and this woman was blatantly and flippantly disregarding the Constitution. Especially considering the fact that she took this oath (similar to mine, as enlisted):

"I, [name], do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same;"

Over the years, millions of people have given their lives to defend the Constitution, and many more have suffered great personal harm and hardship to stand up for it civilly.

If you are not willing to stand up for the letter and the spirit of the Constitution, why have it? It has no teeth. It can be violated without consequence.

The U.S. Constitution is indeed a suicide pact. Otherwise, it's just a series of nice suggestions.

Abolish sovereign immunity

[Hatta]

Title says it all. The government should not be above the law. Abolish every other sort of immunity (judicial, qualified, etc) while you're at it.

Re:Abolish sovereign immunity

[BMOC]

"Sovereign Immunity"

The very name brings to mind the reason rule of law was brought into being in the first place, so that there was one set of rules for everyone. The elite of the world seem historically hell-bent on creating one set of rules for a ruling class, and one for everyone else.

Re:Abolish sovereign immunity

[CanHasDIY]

Title says it all. The government should not be above the law.

It's not.

Or rather, wouldn't be, if the People refused to allow it.

“Well, Doctor, what have we got—a Republic or a Monarchy?”

“A Republic, if you can keep it.”

Re:Abolish sovereign immunity

[Hatta]

This ruling is proof that the government is in fact above the law. The constitution means dick if you can't get the courts to enforce it.

Re:Abolish sovereign immunity

[Mitreya]

This ruling is proof that the government is in fact above the law.

That is indeed a very new development. Quite a step above the usual "Dismiss this lawsuit, because otherwise we'll have to reveal state secrets and the terrorists will kill everyone". Perhaps because this particular lawsuit is the only challenge that survived the old argument?
Any chance SCOTUS may reverse this?

Re:Abolish sovereign immunity

[jpapon]

How is this insightful? It's goddamn retarded.

The US government has always had sovereign immunity.

Immunity of the United States From Suit.—Pursuant to the general rule that a sovereign cannot be sued in its own courts, it follows that the judicial power does not extend to suits against the United States unless Congress by general or special enactment consents to suits against the Government. This rule first emanated in embryo form in an obiter dictum by Chief Justice Jay in Chisholm v. Georgia, where he indicated that a suit would not lie against the United States because “there is no power which the courts can call to their aid.”858 In Cohens v. Virginia,859 also by way of dictum, Chief Justice Marshal asserted, “the universally received opinion is that no suit can be commenced or prosecuted against the United States.” The issue was more directly in question in United States v. Clarke,860 where Chief Justice Marshall stated that as the United States is “not suable of common right, the party who institutes such suit must bring his case within the authority of some act of Congress, or the court cannot exercise jurisdiction over it.” He thereupon ruled that the act of May 26, 1830, for the final settlement of land claims in Florida condoned the suit. The doctrine of the exemption of the United States from suit was repeated in various subsequent cases, without discussion or examina[p.747]tion.861 Indeed, it was not until United States v. Lee862 that the Court examined the rule and the reasons for it, and limited its application accordingly.

Source: http://www.law.cornell.edu/wex/sovereign_immunity/

Re:Abolish sovereign immunity

[jpapon]

It's not a new development by any stretch of the imagination. The first court case establishing sovereign immunity in the US was Chisholm v. Georgia, in 1793. That's right, three years after the Constitution was ratified.

Think about it some, who enforces the decisions of Federal courts? The Federal government. So if you brought suit against the Federal government and won, who would enforce the decision? The Feds?? You're asking the government to arrest themselves... which can't be done. You would have to make a new federal government to arrest the old one.

That would mean the courts have the power to overthrow the Federal government, which they don't.

Re:Abolish sovereign immunity

[Anonymous Coward]

The government is not a person. It makes the laws. No court can touch it. This is the way the law works in the Anglo-American system, and generally in every developed system.

That said, American courts long ago worked out a clever solution. If you can't sue the government, you can sue the government officer in personam; that is, sue the officer as a regular citizen. If it's illegal for the government to do, then it's illegal for the officer, too, even if he's just following orders.

That was a novel turn, but over the years it's become harder to use, for various reasons. The last major development was allowing citizens to sue abusive federal policer officers for damage claims. That was in the 60s or 70s. But since then it's been downhill.

Generally speaking, the only thing protecting you from unlawful search and seizure are activist-judge-made exclusionary rules in the law of evidence. If you can't use it in court, then there's less incentive to do it. But if Scalia and other conservatives had their way, the only recourse you would have for unlawful search and seizure is a nominal claim for trepass or invasion of privacy, presuming you could file it from prison or Guantanamo.

This is why we have all of these seemingly silly rules that let drug dealers off the hook on technicalities. It might seem silly--and it is in an abstract sense---but it's truly the last and effectively only line of defense between you and cops walking through your door down and rummaging through your files anytime they wish.

Re:Abolish sovereign immunity

[Anonymous Coward]

None whatsoever, unless the actual language of the purported immunity waiver is truly ambiguous. Most courts, but especially SCOTUS, have always zealously protected sovereign immunity.

There was a brief period in American history when the idea of sovereign immunity was challenged. It resulted in the 11th Amendment to the Constitution, which stopped the movement dead in its tracks. The amendment seems quite narrow, but if you read the history of it, and subsequent interpretations, it effectively was the death knell for the weakening of sovereign immunity as a legal or political movement.

The only advancements since then have been in suing government officers in personam, but in the past few decades even that door has been slowly closing as courts have become more conservative.

Re:Abolish sovereign immunity

[__aaltlg1547]

If the executive won't obey the law the mechanism of control is impeachment and defeat in elections.

Re:Abolish sovereign immunity

[LordLimecat]

Its insightful because slashdot is filled with armchair lawyer reactionaries who take retarded headlines at face value and act suprised when they discover they were misled.

Slashdot headlines have always been about getting the most intense reaction, and the slashdot readerbase seldom fails to perform in that capacity. Even a moments research would have shown how much of a non-issue this was, but that is too much to ask of slashdot.

Re:Abolish sovereign immunity

[petsounds]

You're asking the government to arrest themselves... which can't be done. You would have to make a new federal government to arrest the old one. That would mean the courts have the power to overthrow the Federal government, which they don't.

Well, the courts can certainly convict persons who make up the government, including the President. However, every attempt by the people to have justice served in this manner has also been thrown out. The only Separation of Power left is the separation between the government and the people.

Re:Abolish sovereign immunity

[jpapon]

Well, the courts can certainly convict persons who make up the government, including the President.

Actually, no, a private citizen cannot bring suit against the President. This would be silly... the President is Commander in Chief of the armed forces. Who is going to enforce a decision against him if he refuses to comply?

There's a reason the power to impeach is specifically given to the Legislative branch in the Constitution. If the President wasn't given sovereign immunity, the Judicial branch would ALSO have the power to impeach (since a President can't very well "preside" from a prison cell).

Re:Abolish sovereign immunity

[Hatta]

That would mean the courts have the power to overthrow the Federal government, which they don't.

This decision means that the executive has the power to overturn the Constitution, which he doesn't.

Re:Abolish sovereign immunity

[Hatta]

What's god damned retarded here is the complete lack of recourse we have against a government who has violated its constitution. Where are the checks and balances we were promised?

I understand that this has been the way the US has always been, but the point is that the US has always been broken in exactly this way. What is the point of the bill of rights if the people have no recourse when our rights are violated?

Re:Abolish sovereign immunity

[Hatta]

Even a moments research would have shown how much of a non-issue this was, but that is too much to ask of slashdot.

If it only takes a moments research to show how much of a non-issue this is, explain to me how we can hold the government accountable for its crimes. If we can't (which appears to be the case), then it is very much a huge issue. It absolutely destroys the rule of law.

Re:Abolish sovereign immunity

[LordLimecat]

If it only takes a moments research to show how much of a non-issue this is, explain to me how we can hold the government accountable for its crimes.

By voting them out of office.

Assume you won your hypothetical case sans immunity: Who is going to enforce that ruling under the current system? If you say "the people", I wholeheartedly agree, and in fact we can already do that without the courts.

Re:Abolish sovereign immunity

[jpapon]

That's just not true. The President does not have the power to overturn the Constitution. Private citizens simply cannot bring suit against the President for enforcement of laws which violate the Constitution. What can be brought before the court is the determination of whether or not a law itself is Constitutional.

In fact, if we're going to get all strict about what is Constitutional, then the Supreme Court doesn't even have the power to determine if laws are Constitutional or not. Take a good look, there's nothing in the Constitution which delegates this power to the Courts. The court simply assumed this power, and nobody has really done anything about it.

Simply put, there is nothing in the Constitution which denies Sovereign Immunity.

Re:Abolish sovereign immunity

[jpapon]

Your recourse against this is voting.

Re:Abolish sovereign immunity

[Hatta]

Which is the same recourse I'd have if the President did something I merely didn't like. What's the point of having a Bill of Rights then, if the President can disregard it at will and suffer no greater consequences than any other exercise of his power?

Re:Abolish sovereign immunity

[Hatta]

That's just not true. The President does not have the power to overturn the Constitution.

Apparently he does, because he has in this very case. I don't see how you can deny this.

Re:Abolish sovereign immunity

[Hatta]

By voting them out of office.

Which is exactly the same recourse we have if the President merely does something we dislike. If there are not additional consequences for breaking the highest law in the land, isn't that the same as saying the highest law in the land is null?

Assume you won your hypothetical case sans immunity: Who is going to enforce that ruling under the current system?

At the very least, they can issue a ruling, and force the executive to openly flaut the law, instead of just giving up. Better, would be to direct their bailiffs to hold any representative of the executive that steps into court in contempt until the executive obeys the ruling.

There's supposed to be a balance of powers in this country. It turns out that is not the case. Even an all out fire fight between the US Marshalls and the Secret Service would be a preferable result to the courts just rolling over and giving up.

Re:Abolish sovereign immunity

[DeadCatX2]

Private citizens simply cannot bring suit against the President for enforcement of laws which violate the Constitution.

What law is the President enforcing? I didn't know there was a law that said you can wiretap without warrants.

What remedy does a private citizen have if the President is acting without authorization based on a law?

Re:Abolish sovereign immunity

[jpapon]

Apparently he does, because he has in this very case. I don't see how you can deny this.

You're not seeing it because you don't want to. All the court said was that a private citizen cannot bring suit against the President for breaking the law.

That doesn't mean Congress can't impeach him for breaking the law. It also doesn't mean that laws can't be found unconstitutional. It just means the President cannot be brought to court by a citizen for breaking the law.

Also, just as a side note, if you read the article it says :

Subsequently, Congress authorized Bush’s spy program in 2008, five years after the illegal wiretapping involved in this case.

So, two things.

1. The charges in this case would be against Bush, not Obama (if a citizen had standing to sue the President).

2. This is actually legal now anyways, and will continue be legal until someone gets the Supreme Court to overturn the wiretapping program.

Which, as stated earlier, would ACTUALLY be the what is unconstitutional in all this mess, since the Constitution does not give the Courts the power to declare laws unconstitutional.

Re:Abolish sovereign immunity

[jpapon]

If he's breaking a law, you can get your representative to impeach him. You can vote for somebody else (though there's no guarantee the other candidate won't also break the law). You can try to get your state to make warrant-less wiretapping on in-state communications illegal.

In this particular case, you could get Congress to waive sovereign immunity for breaking the law on collecting information, ie, change the fact that

"Under this scheme, Al-Haramain can bring a suit for damages against the United States for use of the collected information, but cannot bring suit against the government for collection of the information itself"

You just can't bring suit against the President, under current law, in a Federal (or State) court.

Re:Abolish sovereign immunity

[jpapon]

What's the point of having a Bill of Rights then

The point is that Congress can't make laws which violate the Bill of Rights.

If the President can be shown to have broken the law, you can also lobby Congress to impeach him and remove him from office.

As you're coming to realize though, it's a tricky situation when you're trying to punish the enforcer of law for violating the law.

Just like if you found out your local Sheriff was breaking the law, the situation is tricky. The problem is, with the Sheriff, you can always go to his superior. The President has no superior, so there really is nobody you can go to. Congress has the power to impeach, but other then that, there really isn't much one can do.

Ultimately, the chain of command has to have a top, and in the USA, that's the President. He's not above the law per se (since he can be impeached), but since he's the ultimate enforcer of law, he has to be pretty damned close.

Re:Abolish sovereign immunity

[LordLimecat]

If there are not additional consequences for breaking the highest law in the land,

I dont believe that passing an unconstitutional law is "illegal", its just "not allowed" and might end up binned. Ditto with executive orders-- its not "illegal" for the president to issue an executive order declaring himself dictator for life; it may well be unconstitutional, and it may well cause impeachment proceedings to determine if he is misusing his power for personal gain, but you cant directly file suit against the president while in office even then.

As others have pointed out, imagine the absurdity Obama would have to deal with if every republican could just sue him directly every time he did something they didnt like (or vice versa when an R is in office); and imagine the absurdity of the courts then asking him to kindly wield his executive power against himself.

As for "openly flaunt", according to slashdot thats EXACTLY what happened to start this case; whether its impeachable is a separate question. But at the end of the day you're gonna have to argue with the lawyers lurking on here about whether several hundred years of legal history regarding sovereign immunity should be thrown out the window. That, however, is a question for the legislative branch, not the judicial-- unless I am mistaken.

Is Wiretapping Legal Now?

[ohnocitizen]

If a crime lacks consequences, is it still illegal? There's no longer remedy available through criminal prosecution or civil suit.

Re:Is Wiretapping Legal Now?

[Mitreya]

Is Wiretapping Legal Now?

Why, that depends. It would still be illegal for you to do it. Laws that can be enforced selectively are the most convenient!

Re:Is Wiretapping Legal Now?

[The Mighty Buzzard]

It lacks civil suit consequence, not criminal prosecution consequence.

Re:Is Wiretapping Legal Now?

[Anonymous Coward]

The Supreme Court is the next step if the plaintiffs decide to go that far.

Re:Is Wiretapping Legal Now?

[Anonymous Coward]

It also lacks criminal prosecution consequences. The reason this is so is because for criminal prosecution, you need a suspect. In order to have a suspect, you need some information. You can't investigate that which is highly classified for suspects who have broken the law. Classification of government activities effectively shields anyone acting within any classified information space from outside prosecution unless whistleblowers exist.

Re:Is Wiretapping Legal Now?

[sconeu]

And who is going to prosecute the DOJ? The DOJ?

Re:Is Wiretapping Legal Now?

[Meeni]

Illegally obtained proofs are are not acceptable as proofs during a trial. In some cases, mistrial can result from improper procedures during the inquiries. So it still has consequences somehow that the wiretapping was illegal in the first place, even though those using these illegal procedures are not held accountable.

Re:Is Wiretapping Legal Now?

[LordLimecat]

Its amazing that you can continue to garner +5 insightfuls with several lawyers in this thread remarking on how clueless you are.
http://en.wikipedia.org/wiki/Sovereign_immunity#United_States
Youll note in there that Sovereign Immunity has been around since the founding of our country, and that in the UK it has been a historical reality as well.

But continue to spout off about things you apparently have no understanding of, it seems to be doing wonders for your karma.

Re:Is Wiretapping Legal Now?

[dffuller]

What are proofs? There is only evidence.

Re:Is Wiretapping Legal Now?

[s.petry]

That would be correct, though it may require an impeachment to accomplish. If you read Plato's Republic, a concern even a couple thousand years ago was "Who watches the Watchers?". That act must be done in order to have a functional republic and be a "Free Society".

Start petitioning to impeach these dirt bags that are ruining our country. Doing nothing or implying "impossible to change",as your statement seems to imply, is not moving us anywhere but down into a deeper state of tyranny.

Bye-bye civil society control over the exec branch

[c0lo]

Bye-bye civil society keeping in check the govt... nice while it lasted, but it was naive to think it will last forever.

when did we ever have it???

[logicassasin]

at one point have we, the people, been able to keep the government in check? I always thought it was the other way around.

Re:when did we ever have it???

[Anonymous Coward]

We did it in 1776. Perhaps one day we can do it again.

Re:when did we ever have it???

[flaming error]

Not just 1776.

Google "nullification". The principle basically says that if the federal government does something a state finds unconstitutional, the state should tell the feds to go to hell. It's based on the idea that the states are sovereign, and the federal government exists to serve the states in certain matters of common interest which the states enumerated and delegated.

Nullification has been attempted several times. Unsurprisingly, so far the feds have refused to let individual or small groups of states overrule them, and have reserved to themselves the power to decide what they are allowed to do.

The feds have managed to turn the original power structure on it's head. Which is, of course, double-plus good.

Re:when did we ever have it???

[SuperKendall]

Use those weapons you're so proud of. That is until the government comes and takes it all away.
Enjoy your prison, citizens.
USA worse than third world banana republics. Mission accomplished.

Oh Well, still beats Europe.

Re:when did we ever have it???

[c0lo]

Use those weapons you're so proud of. That is until the government comes and takes it all away. Enjoy your prison, citizens. USA worse than third world banana republics. Mission accomplished.

Oh Well, still beats Europe.

Let me quote you something

The past performance is not a guarantee of future returns

Re:when did we ever have it???

[SuperKendall]

The past performance is not a guarantee of future returns

Europe can only PRAY that is true, given what the governments of Europe have done to the people of the past when things went downhill.

I love many of the people of Europe, I've spent some time living there. But lets be realistic here.

Re:when did we ever have it???

[flaming error]

The civil war was not the last time, but that's irrelevant.

The point is not that the state is never wrong. The federal government errs, too.

The point is that our American government was designed to have the power belong to the states. You don't have to like that design. But if you want to change it, you do it through the amendment process, not by usurping the power.

so its ok....

[Anonymous Coward]

its ok to listen into someone's conversations without any legal permission?

oh well, Nixon, sorry 'bout all that trouble, turns out your warrantless wiretaps on the DNC was ok after all. Whoops, sorry, tell you what, you can have the next presidency to make up for the trouble.

About Judge McKeown

[Vinegar Joe]

She was a White House staffer under Jimmy Carter and was appointed to the court by Bill Clinton.

Re:God DAMN you BOOOSH!!!!

[CanHasDIY]

Oh, wait a minute. He left office almost 4 years ago....

Doesn't matter - he's the one who made it law, so you're perfectly justified in taking him to task for it.

Just like how anyone blaming Obama for his failure* to not only abolish said unconstitutional laws, but expand upon them, is equally justified.



* failure to us. I'm sure the corporate masters who really run this nation consider it a rousing success.

Meaningless Mumbo Jumbo

[WillAffleckUW]

The only thing that matters is if the litigant has standing.

Which, technically, limits it to either a US national with dual citizenship with a country that has an international data treaty with the US or a member of Congress, either House or Senate.

The Administration can't sue itself, of course, either current or former.

The only other person would be a named person that the Supreme Court had already ruled was intercepted without a warrant, and said person would have to be a US citizen.

Wow, is this scary

[jeko]

For decades we have held that phone calls are private communications that require a warrant to intercept per the 4th Amendment. The Federal Government isn't arguing that they haven't violated the 4th. They're arguing that they're immune from any legal attempts to hold them accountable for violating the 4th.

That's terrifying. It's so bad it makes me think I've wandered into tin foil hat territory, until I read the article:

The San Francisco-based appeals court ruled that when Congress wrote the law regulating eavesdropping on Americans and spies, it never waived sovereign immunity in the section prohibiting targeting Americans without warrants. That means Congress did not allow for aggrieved Americans to sue the government, even if their constitutional rights were violated by the United States breaching its own wiretapping laws.

That's Terry Gilliam "Brazil" logic, right there. The government is literally arguing they're violating the 4th Amendment, but that no one has the authority to hold them accountable. Literally, that the King is above the law. This ruling is so bad that not only does it violate the Bill of Rights, it violates the Magna Carta.

Re:Wow, is this scary

[zbobet2012]

The point of that statement wasn't that it literally violates the magna carta, but that it is such an irrational state of being our original culture outlawed it in 1215 .

Re:Wow, is this scary

[lewiscr]

That's not entirely true. The US's laws are based on the English Legal system, and include precedents set in England before the US seceded.

From Wikipedia

The actual substance of English law was formally "received" into the United States in several ways. First, all U.S. states except Louisiana have enacted "reception statutes" which generally state that the common law of England (particularly judge-made law) is the law of the state to the extent that it is not repugnant to domestic law or indigenous conditions.[20] Some reception statutes impose a specific cutoff date for reception, such as the date of a colony's founding, while others are deliberately vague.[21] Thus, contemporary U.S. courts often cite pre-Revolution cases when discussing the evolution of an ancient judge-made common law principle into its modern form,[21] such as the heightened duty of care traditionally imposed upon common carriers.[22]

I interpret that to mean that the Magna Carta itself is not US law, but the judical decisions that resulted from the document are. But then, I don't even qualify as an armchair lawyer, so consult your own legal representative before oppressing the serfs.

Re:Wow, is this scary

[Logic and Reason]

Literally, that the King is above the law.

So is he standing on it, or flying over it? Or perhaps he's using it as toilet paper?

Re:Wow, is this scary

[Anonymous Coward]

The ruling is NOT novel. This has been the established law for over 200 years. This is only news not because of the ruling, but because of how far the attorneys actually made it in litigation before being slapped down.

Sadly, the only recourse anybody has ever had for violations of the 4th Amendment, either now or in 1800, has either been nominal damages for trespass, or exclusion of the evidence from trial.

Just because something is in the constitution doesn't mean you automatically have a right to money damages, or that the person is subject to criminal punishment. In fact, for almost every constitutional rule, the only constitutional remedy (absent a legislative law) is the court refusing to recognize the fruits of the illegality in court, since ultimately the only place a court truly wields power is within the walls of its actual court room.

There's no magical fairy that goes around, slapping down constitutional law breakers. Courts have extreme, god likes powers when it comes to injunctions, but those are used in extraordinary circumstances, and almost never prospectively. In fact the only time a federal court has prospectively used its injunctive power to prevent constitutional violations was in Brown v. Board of Education. And that's about to end, because Chief Justice Roberts has explicitly stated that he wants to end that and similar federal practices which arose out of the civil rights movement.

Re:God DAMN you BOOOSH!!!!

[Anonymous Coward]

Oh, wait a minute. He left office almost 4 years ago....

It's funny you should mention that.

Four years ago, when the President was pushing more Executive power, many were against it. Those people who were against it, were called "UnAmerican" or were accused of wanting to "help the terrorists" or "didn't realize the threats" against our country. Others pointed out the any extra powers that the executive branch will eventually be in the hands of the "other guys" - in this case the Democrats.

No one listened.

People were afraid and there was revenge in the air. John Q. Public was/is more than happy to give the Government more powers because they'll only use it for "good" and NEVER use it against anyone who isn't doing anything "wrong".

As we have seen, power is NEVER given up. The Obama Administration can at anytime give up those extra powers that the previous administration acquired.

They haven't. Nor will they.

And neither will the next Presidential Administration regardless of who gets into office - even if it's Ron Paul.

We as citizens have failed. We are at fault. We let emotion and the desire for revenge cloud our thoughts and we gave away our Freedoms. Sure, we were thrown some bones - like being able to own an assault rifle with big honking magazines increases my freedom - Plah-ease. The government keeps a real close eye on gun purchases. As well as large financial transactions - see OFAC - buy a car - even YOU citizen and it's reported to the government (I know it SAYS foreign but it is also used for domestic purchases on EVERYONE. And then there's the government getting information from: ISPs, Cell Phone providers, Medical Information Bureau, VISA, Mastercard, Credit Bureaus, ChoicePoint, Google, etc ... all with just a scary letter. Who needs a Government Database of files on everyone when corporate America does it anyway (scattered bits and pieces but anyone of us here could create our own Stasi SQL script to put it all together) for the sake of Marketing Data?

They're keeping us SAFE after all and if you do nothing wrong, you have nothing to worry about!

Right???

Hmm

[lightknight]

And another chance to reverse a terrible decision on the part of the Legislature denied.

Re:Hmm

[The Master Control P]

Sure they can modify them: By declaring them unconstitutional and therefore null and void.

[sovereign immunity] can only be waived explicitly

[Culture20]

How explicit does the government have to be? R? NC17? XXX?

Re:They should be able to warrantless wiretap

[Kazoo the Clown]

By this logic, it should be OK for a Democratic administration to eavesdrop on Republican campaign planning conversations and vice versa, since unless they're doing "bad $#!t", they have nothing to hide...

No shit

[Anonymous Coward]

What? The government covered the government's ass?

That "Whooshing" sound you hear....

[jeko]

Tongue in Cheek

Ahoy Despotism?

[udoschuermann]

Seems to me that when the government can violate the law with impunity, it is aiming for despotism. The law of the land is respected only so long as everybody (the government included) is held accountable by it equally.

and the enemy is

[ranpel]

I hesitate to type this but after reading TFA I could only conclude that Congress is, in fact, the enemy. Those responsible for passing the applicable laws should, in my mind, be tried for treason. That or show us all (that is - all of us) the truth about all these plots and evil little plans that threatened to take off half the eastern seaboard. SHOW ME! Cunts.

That we're allowed to (nay, made to) fear and to react to that which we can not see is no longer acceptable. Not. Acceptable.
I. Do. Not. Accept.

Re:and the enemy is

[flaming error]

Yeah, well who elects Congress?

A1: Their corporate sponsors, Ergo, global financial interests are the enemy.

A2: The People. Ergo, we are our own enemy.

Re:and the enemy is

[Mitreya]

conclude that Congress is, in fact, the enemy.

I am not entirely sure why you would conclude that. I'd blame the court here
IANAL, but I think I would have heard that every law has to have an extra note that says "oh, and government is not immune to this law". And if Congress forgot to add that note - too bad, better luck next time.
Maybe the SCOTUS will take this one for review?

Re:and the enemy is

[ranpel]

Being that A1 has a pretty damn good 'interest financing' engine - they put their money where their interests stand a good chance of being served thus adversely affecting the race where A2 believes they can have their own affect. Congress seems to have a funny and twisted way of bringing about a foregone conclusion. Anything you get is "forward" looking and never undoing damage from the past. Fuck they don't even talk about it. Too many funds to raise.

My point was - no matter how you got there if you have the gall to be led by fright (and who knows what else, party mobs perhaps) to vote on a proposed law that is counter to the Constitution then they should be held to account when said law is abused to the detriment of the entire population. Everybody seems to think you can just vote that away when, clearly, that is an enormous undertaking. Gargantuan. Monumentous even. Much more difficult an issue than simply who elects Congress.

And yes, agreed, we are our own enemy albeit Congress is supposed to represent us, all of us, and not simply serve the desires and whims of any given administrations bureaucracy, threat assessments included. Where's the hindsight? Where is the country's conscience? And where, for Christ's sake, is accountability? If accountability is tossed aside and there is no fear from being held responsible it is far too easy a cop out to simply ask who elects Congress. Fuck the voters, the representatives, the president of the day and the judges - who approved the law that has resulted in a frontal on our country? Not you and certainly not me. Sovereign Immunity - who allows that and on what occasion does that come into effect? Why, conveniently enough, it seems to be when shit gets serious enough as to question the integrity of our government it would appear. Convenient.

So, again, I understand and respect your answer yet that seems to leave us with .. nothing. "You voted the asshats in" does not seem to have much bearing on what said asshat does while they're there and I'm of the mind that asshats responsible for setting this stage should be held to account. Removing them from office is a nice gesture and all that but at junctions like these what's the message?

Re:Just a copy...

[BMOC]

I guess that means if I want to torrent movies I have to accept surveillance on my activities?

sorry, trying to find the funny. I know there's one there...

Isn't it deprivation of rights under color of law?

[Libertarian_Geek]

What about deprivation of rights under color of law? They've already confirmed that 4th amendment protected rights were violated. Now, we're just talking about how to hold those responsible accountable for their actions.

18 USC 242 - Deprivation of rights under color of law:

http://www.law.cornell.edu/uscode/text/18/242

Of course they will not

[SuperKendall]

The Obama Administration can at anytime give up those extra powers that the previous administration acquired.

They haven't. Nor will they.

Of course not. Liberals never give up the tools of fascism, they need them too dearly.

Your only chance this round to help at all is to vote with Republicans or other conservatives, whose angle is reduced federal government, and increasing state powers basically with Tea Party candidates). That is the only way to loose the noose (not misspelled).

With a reduced federal government comes reduced funds for mischief, and reduced power over you. It is the ONLY way out apart from violence.

Re:Of course they will not

[Dragonslicer]

Your only chance this round to help at all is to vote with Republicans or other conservatives, whose angle is reduced federal government, and increasing state powers basically with Tea Party candidates). That is the only way to loose the noose (not misspelled).

With a reduced federal government comes reduced funds for mischief, and reduced power over you. It is the ONLY way out apart from violence.

Sadly, many people will not realize that this is sarcasm.

Re:Of course they will not

[docmordin]

Of course not. Liberals never give up the tools of fascism, they need them too dearly.

Yes, clearly [classical] liberals need those tools in order to realize limited government, constitutionalism, rule of law, due process, and liberties including free markets and freedom of religion, speech, press, and assembly.

The following is taken from R. Hudelson, Modern Political Philosophy. M.E. Sharpe: Armonk, NY, USA, 1999:

By the middle of the nineteenth century, a coherent vision of how society should be organized had taken shape in England, western Europe, and the Americas. This vision is the political ideology of classical liberalism. [...] Central to the classical liberalism of the nineteenth century is a commitment to the liberty of individual citizens. Freedom of religion, freedom of speech, freedom of the press, and freedom of assembly [are] core components, as [is] the underlying conception of the proper role of just government as the protection of the liberties of individual citizens. Also central to classical liberalism was a commitment to a system of free markets as the best way to organize economic life.

[...] Classical liberalism draws on the economic science of Adam Smith, the psychological insight into the importance of individual liberty to human beings, and the ethical theories of natural law and utilitarianism. While, at their most abstract level, utilitarianism and natural law disagree profoundly about what makes something morally right or wrong, when combined with the convictions about the truth of Smith's economics and the psychology of human liberty, both theories agree in their endorsement of free markets and limited government. By the middle of the nineteenth century, convinced by the utilitarian critique of the idea of natural law, most philosophers had embraced the utilitarian philosophy. Nonetheless, being also convinced by Smith and Mill of the conduciveness to human happiness and the maximal individual liberty, these same philosophers could warmly endorse the political principles championed by the natural-law theorists of the American and French Revolutions. [...] As the century drew to a close, most classical liberals had also [...] followed Bentham and Mill into accepting the principle of democracy as well. Only governments elected by universal or near-universal suffrage could reasonably be expected to refrain from violating the liberty of their citizens in service to narrow interests [...]

(In case it wasn't obvious, you should not generalize, let alone bandy terms with which you are, seemingly, unfamiliar.)

Re:Of course they will not

[whoever57]

Your only chance this round to help at all is to vote with Republicans or other conservatives, whose angle is reduced federal government, and increasing state powers basically with Tea Party candidates). That is the only way to loose the noose (not misspelled).

So, along with Romney's comments about Obama's support for Green Energy, Romney plans to remove all subsidies and tax credits that oil and gas companies benefit from, does he? Strangely, I haven't heard this statement from the Romney campaign, but I must have just overlooked it.

Re:Of course they will not

[Qzukk]

Your only chance this round to help at all is to vote with Republicans or other conservatives

Further, we urge Congress to withhold Supreme Court jurisdiction in cases involving abortion, religious freedom, and the Bill of Rights.

-- Texas Republicans, 2012 Platform, pg. 5

Good luck with that.

Re:Of course they will not

[jmcvetta]

Your only chance this round to help at all is to vote with Republicans

Damn straight! If you're fed up with the Bushist, kleptocratic policies of the Establishment Party, your best and only recourse in the next election is to vote for the Establishment Party.

Re:They should be able to warrantless wiretap

[slippyblade]

This... This is possibly one of the worst things I've ever read. There is a reason this was posted as AC, because he'd have gotten modded into oblivion otherwise. We stand up for ALL freedoms, regardless of if we use them or not because as soon as one freedom is sacrificed it becomes an excuse to lose another, and another. We are seeing that every single day.

If you honestly believe what you just posted, I can only have pity on you. Your excuse was a favorite line of the Gestapo during WWII.

Re:God DAMN you BOOOSH!!!!

[tnk1]

George Bush didn't make any laws. The President doesn't make laws, he signs them (or vetoes them). He can write Executive Orders, which are sort of like laws derived from powers the Executive was already granted by Congress or the Constitution, but this isn't one of them. The law in question is a bona fide law passed by Congress with a majority vote of both Houses.

Did Bush want the law? Yes. Was he going to get the law if it would have seen most of the Congress people booted out of office next election? Nope.

I'm not saying the voters are ultimately at fault, because the fact is with a government as big as it is these days, and the issues so numerous, what voter can actually find any representative who will see eye to eye with him? Even big topics like this one are only second order (or lower) issues compared to the overriding hot button issues that elections are actually won on. I mean, we have maneuvered the government into a position where we expect it to fix the whole damn economy as well as provide our health care. You'd have to start making a hell of a lot of warrant-less wiretaps to get someone to throw their favorite politician out of office for that.

So, what now?

[clonehappy]

If I have this correctly, here's what the government has just told us:

1. We violated the 4th Amendment to the Constitution.
2. If you would like redress to your grievances, see line 3, below.
3. Fuck You.

Am I still a tinfoil-hatter, now?

Re:So, what now?

[cheekyjohnson]

Am I still a tinfoil-hatter, now?

Yes, because you seem to believe that the individuals who make up the government aren't perfect beings who could never do any wrong.

Re:So, what now?

[oodaloop]

People are fallible, and do wrong. And when they violate the law they should be held responsible for it.

Re:Really bad idea

[Tokolosh]

Vote for Tea Party candidates...that fight to reduce the size of government and the degree of control it has over you

Oh that this were true! Show me a tea party candidate who does not oppose gay marriage.

Bivens Actions

[Anonymous Coward]

All hope is not lost:

Bivens v. Six Unknown Named Agents 403 U.S. 388 (1971) recognizes a cause of action for agents of the federal government for violations of Constitutional rights.

I.E. while the government can't be sued, if a constitutional violation has occurred, the victims can sue the shit out of the government officials who authorized and carried out the violation.

Re:Bivens Actions

[Stirling Newberry]

Which is why the real crime of this decision isn't that the court upheld sovereign immunity, but that it didn't strike down FISA and a host of other unconstitutional exceptions to privacy. Once the issue is there, the court can review almost anything in reach, see "Citizens United."

Re:Bivens Actions

[Hatta]

And Ashcroft v. Kidd (2011) effectively overturned that ruling. You can still raise a Bivens action, but you will lose.

Re:They should be able to warrantless wiretap

[The Master Control P]

I couldn't decide how to respond so I'm putting them all in one post.

Courtroom version: Do you commit any form of financial fraud through your banking accounts, AC? Do you... engage in any form of illicit sexual behavior in your bedroom? Do you use your office to engage in graft, fraud, or organized crime? Do you engage in criminal behavior using your automobile?

Categorically no? Well then, you're just a stand-up all around good guy aren't you? So, what are the details I need to access your banking account? ... Oh, well when can I stop by to plant a camera in your bedroom, a recorder on your phone lines and a GPS tracker on your car?

I can't? So may I take that your response to my request is to go fuck myself? Would you say that any reasonable person would answer otherwise?

But how can this be? You've just assured us that if we're doing nothing wrong we have nothing to hide! And surely if you have no problem with secret and completely unaccountable government agencies monitoring you, you can't possibly object to just little old me helping out?

Communist version: <Fake Slavic Accent>Yes, Comrade, we all know that if you are not a Bourgeois Wrecker conspiring to sabotage the progress of the glorious Workers of the RSFSR, then you have nothing to fear from the OGPU or the NKVD! Only those who they know are guilty are taken away to the work camps to repay their debt to our glorious new Soviet society that Comrade Stalin is building. </Fake Slavic Accent>

Star Trek version:

Sisko: What are the charges against Chief O'Brien?
Archon Makbar: They will be announced when the trial begins, as is customary in Cardassian Jurisprudence.
Keiko: How can we prepare if we don't know the charges?
Archon Makbar: Mrs O'Brien, l take it?
Keiko: Yes.
Archon Makbar: There's nothing to prepare. Your husband's guilty verdict has already been determined. The trial will reveal how this guilt was proven by the most efficient criminal investigation system in the quadrant. You may, if you desire, attend this trial, which begins in two days' time.
...
O'Brien: What am l being charged with?
Kovat: No need to worry about that at this point.
O'Brien: This is insane!
Kovat: Whatever you've done, whatever the charges against you, none of that really matters in the long run.
O'Brien: What does matter?
Kovat: This trial is to demonstrate the futility of behaviour contrary to good order. Everyone will find it most uplifting.
O'Brien: Not everyone.
Kovat: Justice will be done. Our lives will be reaffirmed, safe and secure. Here on Cardassia, all crimes are solved, all criminals are punished, all endings are happy. Even our poorest subjects can walk the streets in the dead of night in perfect safety. You're only one man, but your conviction will be a salutary experience for millions. Now then... The trial opens tomorrow. Do you have any questions, anything you want to say?
...
Gul Evek: According to reliable sources, the Maquis arranged the theft.
Odo: l object!
Kovat: Madam archon, please!
Archon Makbar: l thought we went over this yesterday. What is it now? Gul Evek has tied the Maquis to this plot by quoting reliable sources.
Odo: l think we deserve to know who these reliable sources are.
Archon Makbar: Can you provide any details?
Gul Evek: That information cannot be revealed without risk to national security.
Archon Makbar: That's acceptable.
Odo: Might we know how Gul Evek learned the warheads were in the runabout?
Gul Evek: Of course. We learned about them from reliable sources.
Archon Makbar: Are you satisfied, nestor?
Odo: Madam archon...
Archon M

Really Really bad idea!

[bussdriver]

The old Tea Party people are not so bad, I know a few. The new Tea Baggers are either astro turf or hoards of crazy morons who give the sex act a bad name.

Notice the Tea Baggers are all about destroying anything useful and proven while not touching nearly any worthwhile issue - all while saying they want to reduce government! As if privatizing social security would be better (it wasn't and that is why it was created, duh!)

The old group picked their name and had a big issue with how our politicians do not represent us -- something in common with the occupy movement -- both groups faced attempts to have their image stolen by establishment political forces and the Tea Party lost theirs; occupy has not. (yet, but I don't think they will.)

I want police, fire, libraries, free schooling, roads, highways, social security, public unemployment insurance, NASA, national labratories (before "reforms",) public health insurance (medicare is as good as we can get so far). Democracy is supposed to let the majority collaborate to create universal services many of which provide infrastructure necessary for a successful modern economy... The Tea Baggers are too stupid (or corrupt) to see the differences between Social Security and the police state - they'll kill civil society in response to the creation of Big Brother-- effectively doing half the job of for despots!!

The Wild West Frontier SUCKED which is why it all became civilized with huge majorities in support

Somone please explain sovereign immunity

[MobyDisk]

Can someone please explain the concept of sovereign immunity? The government is sued all the time, so how does this concept fit in here? And how can the constitution be enforced in light of this?

Re:Somone please explain sovereign immunity

[Stirling Newberry]

In a civil suit you can sue.

If you win, you get "relief."

Relief can be at law, meaning money, or for equity, meaning the court orders someone to do something, such as "deliver the computers in the contract."

Sovereign immunity applies to damages at law against the US government itself, and it applies when there is no explicit statute in place.

Re:Somone please explain sovereign immunity

[MobyDisk]

So what can we do?

Logical, cogent and horrific

[jeko]

In fact the only time a federal court has prospectively used its injunctive power to prevent constitutional violations was in Brown v. Board of Education. And that's about to end, because Chief Justice Roberts has explicitly stated that he wants to end that and similar federal practices which arose out of the civil rights movement.

You're arguing that we have the Bill of Rights, but no one has the authority to enforce them, which for all practical purposes means we have no Bill of Rights.

Man, I don't want to go all ITG here, but seriously, too many members of my family have pledged to defend the Constitution from all enemies foreign and domestic to ever allow that to stand. Do you honestly believe Patrick Henry or Thomas Jefferson would agree with your stance, that we fought a Revolution for rights and liberties which don't exist in the application?

Again, I'm loathe to sound like some Tea Party nut, but we seem to have arrived at a Constitutional Crisis with an Executive branch that is on a power-mad three-day-drunk. At the local level, we have police departments claiming that merely documenting their activities is a criminal offense. We have the TSA telling a Federal Court that they don't have to do anything they don't wanna do. We have the DOJ telling another Federal Court they don't have to respect the 4th Amendment and "You're not the Boss of me!" We have a president who claims the right to order the execution of any American citizen without trial.

Clinton, Bush, Obama -- it doesn't seem to matter WHO holds the office, it's the office itself that's out of control. Personally, I think the writing's been on the wall since we let Nixon escape a jail term.

It is long, long past time we pull the Executive back into balance.

Re:Just a copy...

[king neckbeard]

Unless you have the intelligence to differentiate between breaking a legal monopoly and an invasion of privacy by the government. The former is an issue of statutory law, while the latter is an issue of constitutional law. The issue has nothing to do with copying. It would be an illegal search if a government agent was tapping your phone just to masturbate to your voice.

Maybe you shouldn't cut History class so much...

[jeko]

Not even the King is above the Law.

It's one of Western Civilization's famous slogans, right up there with "Give me Liberty or Give me Death," "Remember the Alamo," "Coke Is It!" and "Use the Force, Luke." :-)

Re:Isn't it deprivation of rights under color of l

[Anonymous Coward]

Both Congress and SCOTUS has since seriously curtailed the opportunities for Bivens actions. Considering the novel way that the attorneys approached this case, it's highly like that a Bivens action was already out of the question.

In fact, I seriously that that a Bivens action could even be had for wiretapping. It arose under much more egregious circumstances, I believe. Like the guy's apartment being trashed and him being roughed up and arrested. Wiretapping is less personal, and doesn't shock the conscience. Those types of facts matter because the present conservative court really dislikes Bivens actions. And considering that SCOTUS (both liberal and conservative justices) wouldn't want to touch the "terrorist" wiretapping programs with a ten foot pole, no way in hell are they going to allow a Bivens action.

And you can't blame them. Once they definitively rule on one of these massive data collection cases, they've drawn a line in the sand that can never be erased, and given the government powers (no matter how strict the ruling) that can bever be taken back, even in more sensible times. Better to dodge the question and hope that the political situation changes.

Re:Maybe you shouldn't cut History class so much..

[Logic and Reason]

I was poking fun at your misuse of the word "literally". Maybe you shouldn't have cut English class so much?

Re:Really bad idea

[javy29sp]

Gary Johnson is as close to a Tea Party type (limited government) as there will be this election for President. From his website: Government should not impose its values upon marriage. It should allow marriage equality, including gay marriage. It should also protect the rights of religious organizations to follow their beliefs.

Re:Constitution is absolute law

[Pseudonym]

This argument boils down to the idea that the government can ignore the constitution if it thinks it needs to.

This is just a suggestion, but maybe the right thing to do is provide a way to make that sort of behaviour legal.

Consider, for example, the Canadian Charter of Rights and Freedoms. It has the force of a constitutional Bill of Rights, but contains an "out" clause which says that any individual piece of legislation may override it, but must do so explicitly, and cannot last for more than five years. (Of course, the legislation could be renewed, allowing it to remain in effect in perpetuity, but each renewal requires explicit activity.)

At least in theory, this trades excessive legalism for honesty. The government may violate your rights if it thinks it needs to, but must admit that this is what it's doing, and must re-justify it every five years if it wants to keep doing it.

There are circumstances in which suspending the rules are appropriate, national emergencies being one of the more obvious examples. By giving legislators a way to do it legally, it discourages tortured interpretations of the law which pretend that it's not really being violated at all.

Of course, this will never happen in the US, because the US government would rather just pretend that what it's doing is legal or refuse to hold anyone to account. Politicians lie, film at 11.

Re:God DAMN you BOOOSH!!!!

[Mitreya]

The President doesn't make laws, he signs them (or vetoes them).

Even more importantly, a 2/3 majority of Congress can override the veto. So if the law had 66.6% support when it passed, there is little point in veto-ing it (besides making a statement) and presidents don't always bother.

Re:Really bad idea

[SuperKendall]

There are a number. I am a full supporter of the Tea Party, I also support gay marriage (I have been a libertarian forever). The Tea Party is about reduction of spending and the size of government, not religious matters.

Also it does not matter if the candidate is religious. Palin is very religious yet she was supportive of states rights to choose if things like abortion were legal. The great thing about a states rights candidate is that they move choice closer to where it belongs.

There are no "new" Tea PARTY members.

[SuperKendall]

The new Tea Baggers are either astro turf or hoards of crazy morons

Wrong, that is the media attempting to re-frame the same people as crazy. Listen to the media at your peril.

I want police, fire, libraries, free schooling, roads, highways, social security, public unemployment insurance, NASA,

Can't help you there. I want smaller federal government and personal responsibility. You want slavery under a new name, and I cannot support that.

I want space travel to really take off, not be limited by what NASA can do. The rover was amazing, I'll grant them that, but it's the last heroic action of an aging entity that must go so that a thousand independent efforts can truly bring us the space age we thought we would have by now.

Mark my words, a private company will be have people on Mars before any government.

Re:There are no "new" Tea PARTY members.

[bussdriver]

Democracy is not slavery. Serfdom is living in debt to the banks. Unless you are Amish, you are delusional thinking you are living all on your own sweat. Get off my government created internet you AOL user!

Silly. there is no profit in Mars. robots are cheaper slaves and better workers. housing would have to cost soooo much....and energy would have to be soooo cheap....

Netcraft confirms it...

[evil_aaronm]

The ideal that US government is of the people, by the people and for the people is not only dead, but stick a fork in its fucking carcass dead. Behold a brave new future for Americans, where we cast off the burden of being equal in the eyes of the law, and, instead, become serfs of the state, destined to do only as we're told, when we're told - and love it... Comrade! Smile when you lick those boots!

Re:Netcraft confirms it...

[Areyoukiddingme]

Lick them? I was going to eat them. Food I can afford is getting scarce.

Re:They should be able to warrantless wiretap

[Pseudonym]

If youre not doing bad shit then you have nothing to worry about.

I dare you to say that directly to the face of a Japanese-American citizen who lived through the internment camps of WW2.

Comment removed

[account_deleted]

Comment removed based on user account deletion

Ah. Another Asperger's moment.

[jeko]

They Literally are. I actually attended so many English classes that I remember the entire flow of the argument short-handed as "The King is Above the Law." :-)

They're arguing that no one has the authority to call the Executive to account. They're about half a step short of "Divine Right of Kings," and they certainly have reached "Might Makes Right." Remember "If the president does it, it can't be illegal?" They've simply carried that thought to its logical conclusion, that the president and those who work for him are above the law.

That's a scary, scary argument coming from the man who can throw cruise missiles around on a whim.

Re:God DAMN you BOOOSH!!!!

[adolf]

But: They should. That's what we hire them for.

Violating Rights IS taking Liberty

[jeko]

Yes, your rights are being violated, but nobody is taking your property or your liberty...

The violation of the rights IS the Liberty being taken.

It gets better. The situation you're describing is the collapse of the Rule of Law. One definition of an illegitimate government is one that won't even play by its own rules. At this point, I'll let Jefferson speak for himself:

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, 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.

Any government that won't respect the rights of their citizenry is no government at all, by the very principles we hold most dear...

"Sovereign" immunity?

[Rogerborg]

Even in Soviet UKistan, where we still have an actual sovereign, we can sue "the crown".

For all that you Yanks were so keen to get rid of a king, you certainly seem to like the trappings.

Re:Really bad idea

[Stirling Newberry]

"Vote for Tea Party candidates," The Tea Party wants more, not less, police enforcement, witness the immigration laws passed in Arizona, which make it so that everyone has to carry proof of citizenship at all times or risk arrest. It wants more, not less, corporate power, which is what drives the security state. There are no political movements in the US that can be relied upon, the Tea Party is funded by the Club for Growth and other extreme right wing interests, and the political movements on the left will sell out for almost nothing in return for Universal Unlimited Issue of health insurance.

Re:Really bad idea

[BMOC]

In fairness, voting has historically been about the lesser of two evils. You seem to be suggesting that allowing openly gay marriage is more important than preventing despotism. I think your priorities are entirely out-of-whack.

Re:God DAMN you BOOOSH!!!!

[Qzukk]

George Bush didn't make any laws.

You're right, he didn't make any laws. Members of his administration just did the wiretapping without any law in place permitting it, then when they were discovered, congress passed a law providing retroactive immunity to the people involved, after the fact.

Re:Really bad idea

[SuperKendall]

The Tea Party wants more, not less, police enforcement

More enforcement - but fewer laws, and evenly enforced.

That is a HUGE difference from the Democrats, that want both - except for selective groups that get wavers for enforcement as rewards.

The Tea Party wants enforcement to apply to everyone, not just a targeted subset. That in combination with a fewer number of laws and regulations is the only way to keep things fair.

Constitutional Law in a nutshell

[triffid_98]

Stop! Or I'll say... "stop" again.

Re:Really bad idea

[Stirling Newberry]

Yes it is amazing how many fewer laws a theocracy can have than a Democracy.