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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."
If a crime lacks consequences, is it still illegal? There's no longer remedy available through criminal prosecution or civil suit.
I'm sure they have to justify their action to their corporate owners come next election.
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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.
An enigma, wrapped in a riddle, shrouded in bacon and cheese
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.
"Flyin' in just a sweet place,
Never been known to fail..."
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.
He put his boots up on the table and made a face. "The sig," he smirked. "You can waste your life in search of the sig."
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.
Give me Classic Slashdot or give me death!
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???
FTA:
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.
I swear they give me mod points to shut me up.
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.
--Udo.
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.
\r
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.
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
www.facebook.com/DareDefendOurRights
www.fairtax.org
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.
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.
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?
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.
-- Let us endeavor so to live that when we pass even the undertaker shall be sorry. -- M. Twain
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?
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.
He put his boots up on the table and made a face. "The sig," he smirked. "You can waste your life in search of the sig."
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).
caritj.org
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.
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...
"For every complex problem, there is a solution that is simple, neat, and wrong." -- H.L. Mencken (1880-1956) --
You are NOT an object. That is way too passive.
You are a consumer.
Sleep your way to a whiter smile...date a dentist!
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.
We will bankrupt ourselves in the vain search for absolute security. -- Dwight D. Eisenhower