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Government Seeks Dismissal of Spy Suit 135

Posted by kdawson
from the let's-call-the-whole-thing-off dept.
The Wired blog 27B Stroke 6 is carrying the news that the US has filed a motion to drop the case the ACLU won in lower court against the government's warrantless wiretapping program. The government's appeal of that ruling will be heard on Wednesday, January 31 in front of the Sixth Circuit court of appeals. The feds argue that the case is now moot because they are now obtaining warrants from the FISA court, and furthermore President Bush did not renew the warrantless program. Turns out there's a Supreme Court precedent saying that if you were doing something illegal, get taken to court, and then stop the illegal activity, you're not off the hook. The feds argue in their petition that this precedent does not apply to them. Here is the government's filing (PDF).
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Government Seeks Dismissal of Spy Suit

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  • by MrNaz (730548) on Sunday January 28, 2007 @08:41AM (#17789140) Homepage
    Court: You were spying and that's a very bad thing.
    Governmnet: Yea but we stopped after we were sued.
    Court: Yes, but that doesn't get you off the hook.
    Government: Hey look! Behind you! A two headed moose!
    Court: *Whrils around* Where? Where? I demand to know where!
    Government: *Runs away*

    Now IANAL, but that sounds like a reasonable summary to me.
    • by Anonymous Coward
      In this type of case the Judicial Branch doesn't really have much teeth. While they can certainly punish individual members of the Executive Branch acting on their own, they can't punish those acting directly under the orders of the President. If they did the President would just pardon them and that would be the end of that. The only way that you can punish the President is to impeach him and then find him guilty of a crime and remove him from office. But Congress certainly doesn't have the votes for t
      • by MrNaz (730548)
        Right. So they pointed to the two headed moose and got off scott free?
        • Re: (Score:1, Interesting)

          by Anonymous Coward

          Right. So they pointed to the two headed moose and got off scott free?

          Yup. There isn't a choice that can punish those who violated the Constitution with the political situation as it is today. The best that you can hope for is that the courts drop the case but Congress uses their Power of Subpoena to investigate the hell out of it. The worst is if it remains in the courts and they decide that it was legal (unlikely, but the Supreme Court did once rule that internment of Japanese civilians was perfectly legal for national security purposes).

        • I hope not. Their entire argument is flawed. And I quote, from their filing:

          Nor, as we have shown, is there any "reasonable expectation" that the complained-of harm from the TSP might recur


          I take particular conflict with this statement. The fed's continued assertion that the program was lawful without FISA approval shows that they can, and will use this 'constitutional authority' again as the perceived need arises. On that basis alone, the balance of prejudice against state secrets powers, constitutional power of the executive brach during times of war and mootness versus the right of the people to use the last check in the federal system to prevent future harm is highly in favor of letting the case proceed.
          • by morleron (574428) * <morleron&yahoo,com> on Sunday January 28, 2007 @02:08PM (#17790806) Journal
            I certainly hope that the judges hearing the appeal (and the Supremes when it gets to them) have the intestinal fortitude to assert their authority. The problem with this whole case is that the Bush administraation does whatever it wants regardless of the law. A President who had any respect for the Constitution and the rule of law would never have started this program in the first place. The fact that Bush and his co-conspirators have decided to stop this program tells me that they have simply started another one somewhere within the government's huge espionage sector. They are indeed trying to remove themselves and their actions from scrutiny so that they can carry on as they want over in the dark corners of the room.

            I have no confidence that Bush will obey any adverse ruling that comes out of this case. After all, to do so would undermine the "unitary executive" theory of government upon which he bases his dictatorial actions. I suspect that, in the back of his little twisted mind, he thinks he's immune to actions by the other branches of government. After all, "How many divisions does the Supreme Court have?" In the final analysis it's only the willingness of each branch of government to abide by decisions made by another that makes our form of government work. With his signing statements Bush has repeatedly demonstrated that only he, as the "unitary executive", will make the determination of how a law is to be interpreted or enforced. The Attorney General has recently stated in Senate hearings that the civil liberties embodied in our Constitution do not apply all the time: http://www.lewrockwell.com/eddlem/eddlem14.html [lewrockwell.com]. Given that mindset there is nothing to prevent this President from deciding that he is not subject to rulings of the courts and I'm sure that he will have no problem getting a ruling to that effect from his AG and others in his administration.

            This country is facing a Constitutional crisis that makes the Watergate affair pale by comparison. Between a President who believes that he is not bound by the rule of law and willingly believes whatever twisted interpretation of same will allow him to achieve his ends while appearing to act within the law and a Congress whose members have, by and large, stood by while he has shredded most of the Consitution we have arrived at this point. President Bush has been allowed to carry out whatever course of action he wants, be it the suspension of habeus corpus, torture, secret imprisonment, warrantless wiretapping, etc. with nothing of substance being done to stop him. Indeed, the Congress has abetted him by passing such legislation as the PATRIOT ACT, the Military Commissions Act of 2006, and the Anti-Torture Act of 2005 (which merely formalized AG Gonzales' interpretation of what constitutes torture, essentially allowing anything short of causing death). All he has had to do is to cloak himself in the flag and claim that Patriotism and a desire to "keep America safe" justify his actions. Congress is as much a part of this travesty as he is and the decision by the new Democratic leadership to "take impeachment off the table" can only have strengthened his view of the correctness of his actions. There is still some hope that our course can be reversed, but doing so will require a concerted effort by the Congress, the Courts, and the People to achieve it. Let's hope that the courts don't let us down and that they allow this suit to go forward. At least it would be a start.

            Just my $.02,
            Ron
            • > I certainly hope that the judges hearing the appeal (and the Supremes when it gets to them) have the intestinal fortitude to assert their authority

              They'll need it, too. Have you seen the food that outreach programs give to homeless people? Because that's exactly what happens to people who ask too many of the proper questions when the Federal Government starts throwing its weight around willy-nilly.
            • Without disputing what you say about the Bush administration, I would add that the Constitutional crisis we're facing has existed since 1861, when Lincoln used the same excuse (emergency war powers) based on an equally fraudulent war scenario (the enemy attacked our fort which we maintain on their land, the purpose of which is not to protect them from foreign invasion but to collect excise taxes needed to run the national government and fund the military that will ensure that their State may not peacefully
            • by Sj0 (472011)
              >"How many divisions does the Supreme Court have?"

              That's a terrible, horrible, and plainly stupid thing to say the president is thinking. It's ignorant of facts, contrary to any known interpretation of the facts, and requires a completely perverted world-view to work.

              Do you HONESTLY think that G. W. knows enough about the military to know what a division is?
      • by nietsch (112711) on Sunday January 28, 2007 @09:10AM (#17789228) Homepage Journal
        So you say that because the republican part of your olichargy holds more than 1 third of the seat (one of them always will in your two party system) the president can order the gouvernment all illegal things he likes, because congress could never impeach him.
        So how are your militias going? It is time to feed the tree of freedom, and I nominate every congrescritter that opposes impeaching BabyBush.
        • by Tom (822)
          We might yet see that day. Most of the republicans realize that Bush is dragging them down and that it was he who cost many of them their seats last election.

          There's still hope. I don't really believe it, but as long as there is at least the option that Bush and his cronies spend a few years in Guatanamo themselves, there is still hope.
        • by misanthrope101 (253915) on Sunday January 28, 2007 @09:41AM (#17789358)
          Yeah, even without watching the news I know that the Democrats must've won an election somewhere, because all of a sudden I'm seeing that Jefferson "tree of liberty" patriot quote again. Odd that imprisonment without trial+torture+warrantless surveillance=absolute indifference, but now all of a sudden sweet liberty is being gang-raped by a D congress. I know that isn't your point and you were being satirical. just got me thinking about something I haven't seen since Clinton was in office--Republicans saying that government is dangerous to freedom. I know they're lying and they don't actually believe it, but it's funny to hear it again all of a sudden. Brings me back to my days of furiously reading James Bovard and thinking that Randy Weaver and Waco had convinced the Republicans that you shouldn't trust government. Yeah, I was stupid.
      • they can't punish those acting directly under the orders of the President. If they did the President would just pardon them and that would be the end of that.

        That is not as meaningless as you seem to imply. First it still sets a precident, either way. "We will punish you as best we can" or "we will sit quietly and take it". Second, as long as a big deal is made of it by the press, the president will have to further embarass himself by pardoning them. It will keep this issue alive and public, perhaps long
      • "While they can certainly punish individual members of the Executive Branch acting on their own, they can't punish those acting directly under the orders of the President."

        Really, after World War II many German generals tried just that defense. "I was only following orders." They were hanged.
      • by StikyPad (445176)
        they can't punish those acting directly under the orders of the President.

        Turns out there's a precedent [wikipedia.org] for that as well. Everyone in the military is told that they are expected to refuse an unlawful order. Of course, these people aren't even in the military, so their case is even weaker since they could resign at any time.
    • So i guess if i had sent money to Libya or shipped restricted goods to Libya when it WAS under US sanctions, can i claim now that since Libya has been removed list of OFAC nations, what i did was retrospectively right?
      What if i shipped PS2 from Amazon.com / elswhere to Afghanistan in 2001 and then retrospectively claim it is to be used by US troops there?

      Considering the asshole Gonzales claims that Bush should be protected retrospectively, can i apply for protection under same precendences.
      I say a lawyer fi
    • More political hand washing [articlev.com]. Nothing new here. Different spin on the same old game. Write laws to subvert the limitations of the Constitution and then get the SCOTUS to affirm that the law is good thus pushing the question of legal authority into the closet.

      People: "Hey! You can't do that!"
      Government: "We wrote a law that said we could."
      People: "You don't have the power to write that law."
      SCOTUS: "The law is good."
      People: "They don't have the power to write that law."
      Government: "No soup for you!"
  • by khasim (1285) <brandioch.conner@gmail.com> on Sunday January 28, 2007 @08:43AM (#17789144)
    So, before, it was necessary and legal and there was absolutely nothing wrong with it and whomever leaked the information on it was a traitor.

    Now, it's back to the Court and warrants are being issued and there's no need to take this to the SCOTUS because we're not doing anything illegal ... now.

    Just for that reason this MUST be seen by the SCOTUS.

    This is still a Democracy.
    • by Beryllium Sphere(tm) (193358) on Sunday January 28, 2007 @12:38PM (#17790272) Homepage Journal
      then they should insist on the chance to argue it before the Justices.

      This pattern of hyping a security threat and forgetting about it when challenged has come up before. Yaser Esam Hamdi was supposedly too dangerous ever to be set free, allowing him to see a lawyer was somehow supposed to endanger our national security, and when he finally did get to meet an attorney the military recorded the entire meeting.

      So, when the Supreme Court ruled that a US citizen was entitled to say "put up or shut up" when imprisoned, did the government build up a prosecution based on the Qala-e-Jangi prison riot? No -- they cut him loose and shipped him to Saudi Arabia. Pretty much the last thing anyone who cared about the country would do if they really thought he were a terrorist.

      We already knew that it wasn't a national security issue whether a security-cleared patriotic judge saw the wiretap applications beforehand (even after the fact if the government so chose). Now we know that the Administration didn't even think it was a national security issue.
  • it's like (Score:4, Insightful)

    by micktaggart (1047954) on Sunday January 28, 2007 @08:55AM (#17789170)
    being taken to court after you beat wife, but then claim the court case should be thrown out because you haven't beaten her since the court case started.
    • Re:it's like (Score:4, Interesting)

      by Mr. Underbridge (666784) on Sunday January 28, 2007 @08:59AM (#17789192)
      Well, not quite. As I understand it, the remedy sought by plaintiffs was cessation of the program, which, as toe gov argues, has ceased anyway. With the wifebeater, the remedy is jail. So somewhat different. Don't know if that helps get them off the hook or not, but what would plaintiffs argue now?

      • It would be like arguing that you have stopped beating your wife, but you retain the right to resume beating her if she "really needs it".

        The governments play here is quite plain and obvious. Getting the case this far has taken a long time. They are seeking a dismissal so that the case will have to be restarted from scratch once they've restarted their wireless wiretaps.

      • > cessation of the program, which, as toe gov argues, has ceased anyway

        Meaning: "We figured out who leaked it, they've been lynched, and we've determined the most effective way of continuing without letting anyone else know."

        If you have a security clearance you get to "know" a lot more about what the government is doing with trillions of dollars in taxpayer money. Has anyone stopped to wonder just what all the new database jockey positions with military contractors requiring security clearances will be
        • If you have a security clearance you get to "know" a lot more about what the government is doing with trillions of dollars in taxpayer money.

          Do you have one? They don't hand you the keys to the car with a clearance. You get access to know a little bit about a small piece of an enormous pie.

          I'm guessing the databases are chock full of information gleened from digital transmissions, many financial transactions, cell phones (satellites are in international airspace, therefore, every cell phone call is a

  • by Anonymous Coward on Sunday January 28, 2007 @09:03AM (#17789206)
    It's not done under the FISA program, he's trying to confuse the judge. What they did was they got 1 FISA judge to declare the whole program legal, not case by case with probable cause, not a FISA court ruling, a ruling of a single FISA judge.

    An actual legal FISA warrant is done case by case:

    Each application
    for a surveillance order must include, inter alia:

    1) the identity of the federal officer making
    the application;

    2) the authority conferred on the Attorney
    General by the President of the United States
    and the approval of the Attorney General to
    make the application;

    3) the identity, if known, or a description of
    the target of the electronic surveillance;

    4) a statement of the facts and circumstances
    relied upon by the applicant to justify his
    belief that . . . the target of the electronic surveillance
    is a foreign power or an agent of a
    foreign power . . . [and] each of the facilities
    or places [to be subjected to the surveillance]
    . . . is being used, or is about to be used, by a
    foreign power or an agent of a foreign power;

    5) a statement of the proposed minimization
    procedures;

    6) a detailed description of the nature of the
    information sought and the type of communications
    or activities to be subjected to the surveillance;
    [and]

    7) a certification [from an appropriate executive
    branch official] . . . that the certifying
    official deems the information sought to be
    foreign intelligence information . . . that the
    purpose of the surveillance is to obtain foreign
    intelligence information . . . that such
    information cannot reasonably be obtained
    by normal investigative techniques . . . .

    http://fas.org/irp/agency/doj/fisa/sojudge.pdf [fas.org]
    • by Guppy06 (410832) on Sunday January 28, 2007 @09:12AM (#17789240)
      "What they did was they got 1 FISA judge to declare the whole program legal,"

      Yay, a general warrant [wikipedia.org]! We don't need no stinking Fourth Amendment!
    • by stinerman (812158)
      Can you find a source proving that this program is not under the auspices of FISA? I was under the impression it was, but I truly don't know.
      • by Anonymous Coward
        Read the government submission in the story. Section D.

        'A judge from the FISA court issued order authorising the government to target for collection international ....'

        i.e. a blanket authorization from a single FISA judge, a power the FISA court isn't empowered to grant, let alone an individual judge. It can only grant individual warrants in the circumstances above.

        I'm not aware of any power under which a FISA judge can issue a blanket power like that.
        • by $RANDOMLUSER (804576) on Sunday January 28, 2007 @09:51AM (#17789402)
          You are correct. No court or judge has the power to issue such a blanket authorization.

          The Fourth Ammendment:

          The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
          • by thule (9041)
            How does the 4th Amendment apply to individuals outside the US in a battlefield? Only *targets* of a wiretap need a warrant. Since the NSA operates under the DoD on *targets* outside the US, the 4th has never applied. Just like search warrant doesn't apply to a soldier raiding a house.

            It is when a *lead* from a NSA tap on a foreign *target* that the FBI needs to get a warrant. That appears what the TSP was doing. It tore down the wall between the NSA and the FBI so the NSA could pass leads to the FBI.
  • by davmoo (63521) on Sunday January 28, 2007 @09:05AM (#17789212)
    The feds argue in their petition that this precedent does not apply to them.

    I wouldn't expect the feds to argue any different. King George and his regime have been arguing that the Constitution doesn't apply to them and the Bill of Rights doesn't apply to them. How could anyone think they'd accept prior case law as applying to them.
  • by Tom (822) on Sunday January 28, 2007 @09:13AM (#17789244) Homepage Journal
    Really. If I ever get caught in, say, a murder, I just stop killing anyone and I'm free.

    Right?

    Oh, wait. Doesn't that mean Bush should also stop hunting Bin Laden? I mean, he hasn't crashed any airliners into skycrapers for years now.

    The mind boggles trying to follow what passes for "reason" in your government. I once thought Bush is stupid. I don't do that anymore. I think he has some unknown insanity that is contagious.
    • Re: (Score:3, Funny)

      by Anonymous Coward

      Oh, wait. Doesn't that mean Bush should also stop hunting Bin Laden?
      Um, I hate to be the one to break this to you....
      • Re: (Score:1, Troll)

        by kevin lyda (4803)
        As a New York native I find that comment both funny and enraging.

        WTF is this numbnut still doing in office? Why?
    • by gravesb (967413)
      The difference is in the remedy. If you murder someone, the remedy is jail, so there is a point to charging you. In this case, they wanted an injunction to stop the activity. If the activity is stopped, why go to trial? I actually think what is happening, though, is that the practice was stopped so that there is never a court order against it. Then, they can start it up again later. If it does go to trial, and goes against them, then they would not be able to legally start it up again.
      • by Oonushi (863093)
        You are right: the remedy for breaking the law is jail. In fact, you can be jailed for much less than murder. Now, warrantless wiretapping is illegal, and therefore those involved must be tried and jailed. I don't see how this can be dismissed. Our public servants need to be held accountable to those whom they represent.
      • by gravesb (967413)
        Actually, the remedy for breaking the law is not always jail. Also, there is soverign immunity. While the President is sitting, the only way to try him is by impeachment.
        • by fyngyrz (762201) * on Sunday January 28, 2007 @02:57PM (#17791122) Homepage Journal
          Also, there is soverign immunity. While the President is sitting, the only way to try him is by impeachment.

          I just tried for quite a while, and I can find no mention of this in the constitution. What part is it in?

          The closest thing I found was in article 1, section 3, about the Senate:

          judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.

          What this clearly says is that the impeachment process itself can only result in getting the target tossed from office; but that the rest of the body of law, and punishment, still applies in the normal venues, that is, police, court, jail and so on. It doesn't say that the person has to be impeached before normal procedures take effect, either.

          In article 2, section 4, we find this:

          The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

          ...and again, what we have here is a mechanism for removal from office. There is no provision for immunity from the mundane legal process. In other words, this doesn't protect the president from a traffic ticket or a murder charge.

          Here, under article 3, the judicial branch, we find:

          The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; to all Cases affecting Ambassadors, other public Ministers and Consuls; to all Cases of admiralty and maritime Jurisdiction; to Controversies to which the United States shall be a Party; to Controversies between two or more States; between a State and Citizens of another State; between Citizens of different States; between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

          In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

          The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.

          The above makes it clear that the courts do indeed have jurisdiction when the case involves a "public minister" and furthermore, the last part clearly sets out what to do in the case of trials of "other" kind than impeachment, meaning they were specifically thinking that law should apply to public officials (as of course it should, what, were they supposed to be idiots?) Not only that, the wording makes it clear that such trial can occur without impeachment - so impeachment does not have to come first.

          This whole business of the president being "immune" smells like nonsense of the first degree to me, and I utterly fail to see any constitutional justification for it. Barring anyone pointing out something critical I've missed here, my position is that Bush is a crook, he is long past needing to be arrested for illegal wiretapping, torture, and obstruction of justice - he is the responsible party - and tried, and punished. Congress can get around to impeaching him, or not, I don't really care, but I do think the man belongs in a courtroom, facing these accusations, and frankly, I think conviction should be a doddle.

          • by gravesb (967413)
            In Marbury v. Madison, Marshall said that the Executive in the execution of his powers is beyond the reach of the Supreme Court, if they are the powers granted by the Constitution and not by statute. Its debatable if he is or not. It could be argued that the is executing his powers as Commander in Chief. I am sure there is other case law relating to this, but no court will try the President prior to impeachment.
            • by fyngyrz (762201) *

              Marshall said that the Executive in the execution of his powers is beyond the reach of the Supreme Court, if they are the powers granted by the Constitution and not by statute.

              I don't have any problem with that. However, the constitution does not grant the ability to secretly invade a citizen's privacy without a warrant, does it? Nor does it grant the power to torture; I could go on for quite a while. The bottom line is clearly that he can be criminally charged, and that he is not, by the above court d

            • The Federal Judiciary should stay out of political battles, as it cheapens their legitimacy in the public eye. It is a shame that they did not heed this, in the election aftermath of 2000. Still, it is not the President, and his unlawful acts which are being appealed. It is the NSA's unlawful acts determined to be unlawful, notwithstanding that they claim were predicated on a presidential finding.

              These unlawful acts are surely Constitutional Violations. Whether the Legislature finds the courage to chal

          • Article 1 Section 3 states "impeachment shall not extend further than to removal from office. . . . but the party convicted shall nevertheless be liable. . ." Clearly, the party impeached, once convicted, shall then face indictment. Only once the party is convicted through impeachment can additional prosecution commence. That's rather apparent from a straight reading of the text, IMO. If the provision were supposed to be interpreted as you wish, it would have omitted the word convicted.
            • There is some precident for limited civil immunity for the president. It essentially keeps them from being kept in depositions for the length of their term. Note that it doesn't prevent the suit from being filed, just that it can't be persued util after they leave office. As for criminal prosecution, I believe that is more of a curtesy than settled law. Criminal acts resulting from his acting 'as the president' seem to be in the domain of congress. However, I have no doubt that the DC police would take cust
            • by fyngyrz (762201) *

              Only once the party is convicted through impeachment can additional prosecution commence.

              According to your reasoning, Bush could climb a bell tower, aim a machine gun at the crowd of churchgoers below, mow them down in a hail of lead, and he could not be arrested. He could take a bunch of visiting boy scouts, cut them up on his desk, and eat their livers, and there wouldn't be a thing we could do about it until he was not only impeached, but also convicted in the senate.

              I think your reasoning has mo

              • According to your reasoning, Bush could climb a bell tower, aim a machine gun at the crowd of churchgoers below, mow them down in a hail of lead, and he could not be arrested. . . .

                IANAL, but I do believe that while he certainly could be detained by authorities in order to stop the commission of a crime, he could not be prosecuted for said crime by authorities other than Congress until impeached by the House and convicted by the Senate. I agree with you that the clause also means that impeachment is no excuse for prohibiting further prosecution, but it also means that removal from office by way of impeachment must precede further prosecution.

                Again, the text reads "but the party co

                • by fyngyrz (762201) *

                  We will agree to disagree then, for I see no way that the passage can be read the way you say. You are adding a great deal of meaning, and words, that are not in the passage. I'm just reading the sentence for what it actually says, which is that conviction at impeachment doesn't make the subject immune from mundane procedures at law.

      • by Tom (822)
        Ok, let me get this straight: The remedy for beating my wife is jail. The remedy for violating the privacy of millions of citizen is "please stop"?

        I understand what you're getting at, and in a strictly technical sense, you are correct. That doesn't mean it's proper. Frankly, I would like to know why the ACLU didn't ask for damages. How about $100 per illegally monitored call, payable in half to each participant in the call.

        I mean, it's not as if you could bancrupt the government, not anymore than they alrea
      • by gravesb (967413)
        Because the damages would be paid by other citizens. The government only gets its funding from tax money. To pay the damages, they would either have to raise taxes or cut programs. Believe me, they wouldn't cut pork, either.
      • by gravesb (967413)
        Marshall's point is that the political process should be used to punish the President. He is, at least nominally, prosecuting a war as a commander in chief. In a later case, Marshall said the other branches of government had freedom to use powers not stipulated in the Constitution to achieve the broad framework in the Constitution. That's why congress can create a national bank or bould an interstate highway system, despite a lack of those in the Constitution. So, as long as the President can fit his ac
        • US had an old (pre WTO) regulation known as SUPER 501.
          It applies to countries which impose puntitive sanctions on US-made goods, by taking that country's own laws and applying it to goods exported by that country to US.
          We should similarly try the Prez and AG under the same secret laws, and secret prisons which they are so fond of.
          One fine day we all wake up to the news at 8 that prez and AG are in Gitmo for being "persons-of-interest" but their lawyers are unable to reach them because of the laws made by th
    • by evilviper (135110)

      If I ever get caught in, say, a murder, I just stop killing anyone and I'm free.

      Right?
      If it was a civil suit, brought to get an injunction against you to stop killing people... then yes.

      Otherwise (ie. a criminal case for individual offenses), no.

    • by sgt_doom (655561)
      Doesn't that mean Bush should also stop hunting Bin Laden? I mean, he hasn't crashed any airliners into skycrapers for years now.

      Actually, Bush has never been hunting for that old family friend of his, Osama bin Laden. If you recall from the news several years ago, a Delta team was ordered to stand down by Central Command when they thought they had spotted bin Laden at Tora Bora. They then witnessed Soviet-made, Pakistani military helicopters fly in and retrieve him and his entourage.

      Latter, upon retu

  • I Got Better (Score:3, Interesting)

    by Doc Ruby (173196) on Sunday January 28, 2007 @09:19AM (#17789272) Homepage Journal
    In BushWorld, only serial killers are murderers. Mass murderers who go straight are OK.

    That specific example will probably show up in court. If not in this spy suit, then at the Bush/Cheney/Rumsfeld/Neocon war crimes trials.
    • by mikelieman (35628)
      Just like the way Darth Vader was given a Get Out Of Damnation Free Card for saving his son from the Emperor at the last minute, despite the slaughter of entire planets full of people.

  • If they win (Score:5, Interesting)

    by Hennell (1005107) on Sunday January 28, 2007 @09:22AM (#17789288) Homepage
    would this mean that all file sharing would be fine, as long you delete your file sharing software and promise to not do it anymore if they try to prosecute you?
  • Power Company (Score:4, Insightful)

    by Doc Ruby (173196) on Sunday January 28, 2007 @09:29AM (#17789310) Homepage Journal
    This logic is the essence of the Bush Era. The theory is entirely devoted to power. All that matters in life is to whom you defer in power. If Bush acknowledges that a court, a Congress, or a TV audience has any power over him, that's the end of the issue. Only after an apocalyptic fight with every resource possible, including illegal means, torture, spies, assassinations, exposing covert agents, bribes, anything to attack the force asserting power over them. Then, when it looks like the new power will win, they try to bargain for changes to allow them to do what they were doing in exchange for admitting they used to do it, then claim "we were right all along". If they still lose, they take whatever lumps are offered (until now, practically nothing except perhaps purely symbolic, from their Republican Congress), then just do it anyway in secret - or through proxies, either corporate or overseas.

    Because all that BushCo has learned from politics is the Nixon philosophy "it's only a crime when you get caught". Because the Bush admin made its bones in the Nixon admin [google.com].

    These people will do anything for tyrannical powers, including use ones they don't actually have to get them. The Constitution is designed to stop such criminal tyrants: impeachment [u-s-history.com]. It works only while the Constitution still has more power than the tyrants attacking it.
    • This logic is the essence of the Bush Era. The theory is entirely devoted to power.

      They have only one rationale: "Because I said so." And their political philosophy is the Divine Right of Kings. We've been down that road before with absolute monarchies. It inevitably leads to torture, corruption and wars of adventure.

      Drop the talk of impeachment. The gutless wonders in Congress are right on that point: by the time impeachment proceedings are completed Bush will already be out of office or nearly so. In

      • Re: (Score:1, Flamebait)

        by Doc Ruby (173196)
        You understand power, but you don't understand impeachment.

        First, the president (and arguably, the VP) cannot be tried for anything while they're in power, except by impeachment, according to the Constitution. Who will violate that? No one.

        Second, impeachment doesn't have to take long. Republicans impeached Clinton in a few weeks.

        Third, impeachment doesn't have to lead to conviction to stop a criminal president. Nixon resigned rather than allow a trial to expose even more of his criminal enterprise and his
  • Study of Kafka (Score:5, Insightful)

    by Mutatis Mutandis (921530) on Sunday January 28, 2007 @09:54AM (#17789414)

    This is the same trial, I think, in which one of the lawyers for the plaintiffs said he was studying Kafka as a refresher course on bizarre legal proceedings.

    If the only goal of the plaintiffs was to seek an end of the government's wiretapping activities, then the government's request would not be illogical. One of the major disadvantages of the Common Law system is that it is so laborious and costly that only a minority of cases can actually be decided in court. Stopping a procedure to achieve a goal that is already achieved, would save time and money.

    Unfortunately for the government, one of the plaintiffs is seeking civil damages, because documents that got accidentally in the "wrong" hands, revealed that it was being illegally spied upon. And this damages part of the trial clearly cannot be avoided by simply stopping the snooping, as it applies to the past. The US government's position on this appears to be that it cannot be prosecuted because all evidence against it is secret (how convenient) and should never have been seen by the plaintiffs, their lawyers, or the court. It did not yet file a formal request to have any memory of it erased from their minds, but I am sure that is only because they lack the technology, not because they have an scruples about it.

    This, of course, is only the civil side of the issue. I think possible criminal prosecution is still open regardless of what is decided in this case, although it may have to wait for the end of the Bush administration.

    As far as I remember, in some Italian republics of the Renaissance government officials were sent to court automatically after the end of their tenure. They had to account for their actions in office and clear their names of accusations of abuse of power. Maybe that is a system the USA should be considering again.

    • Re: (Score:1, Interesting)

      Yeah, I would love to see that happen. However, the pardoning of Nixon set up a bad precedent of "ending our national tragedy," and not punishing those who committed crimes (Kissinger would have a fun time at the dock). One must remember that Bush has a largely corporate mentality-- he makes a plan and then asks a lawyer, such as John Yew or Gonzales, "is this legal? How can we make it legal?." They find an excuse-- "Well, it's alright to suspend habeaus corpus, because it's listed as a privilege and the i
  • I love it when accountability works -- you know, checks and balances, blind justice, and so on and so forth.

    Do as I say not as I do should be the new motto on the money.

    • by morcheeba (260908)
      I nominate "Original storytelling, updated three times a week." for Bush's assertion of WMDs in Iraq, imminent threats to the US from Iraq, and a 9/11-Iraq connection (which is still heard about 3 times a week).
  • I agree that the government doesn't want to get in trouble but I think that they also do not want it banned for the future. This is the old two steps forward and when the people protest you take one step back. I heard Senator Hatch say that the Patriot Act is a good thing as we have had no terrorist attack in the US since. How many terrorist attacks did the USSR and Nazi Germany have that weren't staged?
  • The U.S. government is more corrupt now than it has ever been.

    I wrote a summary of the corruption: George W. Bush comedy and tragedy [futurepower.org]. I hope other people will write their own summaries and send them to their elected representatives. I love the U.S. and the corruption is extremely unhappy for me.

    --
    U.S. government violence in Iraq causes more violence, not peaceful democracy. Violence breeds violence.
    • I guess you have never heard of Richard M. Nixon.

      • Nixon was a pardoned criminal. However, he didn't even come close to the enormous, widespread corruption of the G.W. Bush administration.

        Of course, G.W. Bush is someone with an alcoholic personality who mostly just reads what is written for him. Cheney and Rumsfeld and Wolfowitz are also major abusers of government power.
        • I have yet to see any of GW Bush's aides sentanced to jail time, or news of him using government agencies (FBI, CIA, IRS) to systematically repress individuals who criticize him, or his VP have to resign due to proof of bribery, extortion and tax fraud being present by a US district attorney general.

          Anyone who thinks the Dubya administration is worse than Nixon doesn't know their history. If anything should stand for proof it is the realization the Nixon was truly paranoid and far smarter than GWB.
          • The almost total ignorance of U.S. government corruption among its citizens scares me. I love the U.S., and for me that means staying with it when it is in trouble.

            Bush administration representatives have not been arrested because the rule of law has been suspended. Here is one of the many, many articles about that: Bush Is Not Above the Law [nytimes.com].

            GWB is only a figurehead. Yes, he is corrupt, but he mostly enables other corrupt people.
  • and a single stoat.

    I wish I were joking.
  • by AusIV (950840) on Sunday January 28, 2007 @12:48PM (#17790300)
    Last I checked, there were 3 parts of the government, (though some of them are quickly becoming less significant). There's the executive branch (the branch referred to as "the government" in the summary), the legislative branch (congress), and the judicial branch (includes the supreme court). The appellant listed in this case is the National Security Agency, which does fall into the category of executive branch.

    To refer to the executive branch as "the government" is incredibly misleading. Congress is now controlled by the Democrats, which means the president now has to get everything approved by a group with conflicting views. Then there's the judicial branch, which at this point is still trying to hold the NSA responsible. To call one agency of one branch of the government "the government" shows an incredibly poor understanding of hour our government works. For a while we may have been headed down a path where the executive branch was the only one with any authority, but thankfully this is looking to be less and less the case.

    • by Anonymous Coward
      "which means the president now has to get everything approved by a group with conflicting views."

      To put the brakes on his power, they have to pass laws. But he can veto those laws, so the true power is still with the President.

      Congress didn't vote for warrant less spying on Americans, and this change he's made is cosmetic, yet there is nothing Congress can directly do.

      Until they get the 2/3rds majority they can only delay anything that requires extra money, but as Cheney has stated, he will simply dissect b
  • This just keeps getting worse....

    It seems that this administration and the people behind it's policies want to selectively use and selectively abuse the constitution.

    They want to disregard, eviscerate and invalidate parts of the constitution which provide protections to the people, checks and balances between the branches of government and state's rights; Bush himself has even, (on one occasion it is reported) referred to it as "just a goddamned piece of paper;"

    yet when it suits them they claim that under t
    • It seems that this administration and the people behind it's policies want to selectively use and selectively abuse the constitution.

      Abuse of office -- the roots of imperial Federal power -- old story. Take for example the early twentieth centure --

      Palmer Raids [wikipedia.org], 1918-1921 -- "In 1919, J. Edgar Hoover was put in charge of a new division of the Justice Department's Bureau of Investigation, the General Intelligence Division. By October 1919, Hoover's division had collected 150,000 names in a rapidly e
    • by Legion303 (97901)
      "Bush himself has even, (on one occasion it is reported) referred to it as 'just a goddamned piece of paper'"

      Reported by noted bullshitters Capitol Hill Blue, unsourced and unverified.

      It wouldn't surprise me to learn GW would blow his nose on the constitution if he could. But it would surprise me if CHB started doing real reporting.
      • by moxley (895517)
        That is true, that is the original source of the report of that comment; however, from what I understand there were several people present when this was allegedly said and it does fit with several other equally disturbind, idiotic things he has said. Regardless of the validity of that report, i am more concerned with his actions than his statements - and his actions speak very loudly that he thinks that the constitution gives him the right to do whatever he pleases and protects him from being held respons
  • "The feds argue in their petition that this precedent does not apply to them."

    Nothing applies to them. They are living in Alternate Reality W.
    • Nothing applies to them. They are living in Alternate Reality W.

      Nothing applies to them, because they have the ways and means -- the guns and the spies -- the money and the power -- and becaue they wish to listen to anything, anytime, anywhere.

      -kgj
  • "You can't take me to court, I did all those things way back when I was President! I'm not President anymore!" - George W. Bush, Feb. 2009.

    "You can't take me to court, Nicole isn't dying, she's dead! That's past tense, see. I'm not still killing her!" - OJ Simpson

    "Oh, no, no, I stopped mailing out bombs a while ago, thanks anyway! Oh, I have a present for you. Go ahead, open it!" -Theodore Kaczynski
  • by gone.fishing (213219) on Sunday January 28, 2007 @03:37PM (#17791386) Journal
    I am so tired of the current administration running roughshod over the rights of citizens and non-citizens alike. The Executive Branch seems at every turn to believe that the law and indeed even the constitution do not apply to them! I suspect that if we were to harness the energy of Jefferson, Franklin, and the other signers of the constitution spinning in their graves we could once and for all solve the energy crisis!

    I've noticed that recently this seems to have stopped being a Republican/Democrat thing and seems to have become an Executive Branch vs. Congress sort of thing. Dozens of Republican congressmen are now speaking critically of our president and his cabinet publicly. While I think this is a very good thing, I think it may be too little too late. So much damage has already been done. Laws like the Patriot Act have already been passed and implemented and our President has too much power and momentum going his way.

    We have secret prisons and our citizens (and non-citizens alike) can be tried in secret courts. Hell, we don't even have to try them according to the Justice Department, Habeas Corpus is actually not a constitutional right!

    Don't forget that our president was elected based on a highly questionable election in 2000. Many people called it a bloodless coup! I have no explanation on how he was re-elected in 2004 and frankly, I fear that the power structure is already in place to make the 2008 election another sham. I suspect that the people that control this administration will stop at nothing to remain in control.

    The president and his cronies lied to us about the threat that Iraq represented and they dragged us into an illegal war that has killed thousands of people and maimed tens of thousands more. He sent our troops into battle without adequate protection and recently ordered even more in to Iraq despite the fact that we no longer have much of a reason to be there.

    Our president is out-of-touch with the citizenry, he is not listening to congress or even to logic. He and his administration are operating not according to law but rather as they wish. The executive branch while part of a democracy is not functioning as if it is a component of a democratic nation but rather as if it were a dictatorship.

    I think we need to place our hope in the third triad of our government, the one that is least democratic (it is not elected and its members are appointed for life). We must rely on the Judicial Branch to make the right decisions to keep democracy intact. Court cases like this one, and the one testing Habeas Corpus, are quite literally a test of the mettle of our country. Sadly, we have a (politically) "conservative" court, the majority of which were appointed by Republicans, the same people who are in control of our Executive Branch.

    I am worried about what America is letting itself become. I don't think that our
    leadership in the Executive Branch any longer has any interest in representing "we the people" and I worry that we may be too late to restore our country to what it was.
    • by Legion303 (97901)
      "Dozens of Republican congressmen are now speaking critically of our president and his cabinet publicly."

      You may see that as a step in the right direction, but after 6 years of republicans fellating the president, the significance of their change of heart one year before another election cycle has not been lost on me.

      Politicians are liars. Regardless of what these fucks say now, I vote based on past actions.
      • I think your observation has merit. There is more "profit" in being critical of the administration now that the elections are over. Since the current president can not be re-elected it is a wise political move to be critical of the things that the polls tell them that the public opposes. Yet it is water off of a (lame) duck's back to the current administration.

    • by Builder (103701)
      Actually, you do have a very good reason to still be in Iraq. Your lot, with the help of mine made an almighty mess of the place.

      I was extremely vocal in my anti-war protests (to the point that my MP knows me by name on sight now :)), but now that we're there, I'm equally adamant that we stay there until we fix the mess we made.

      Like the sign in the shop said 'You broke it, you bought it'.
      • I agree, we did do a lot of damage and I acknowlege that something should be done to make things better before we are actually "out" of Iraq. Bot, on the other hand, doesn't it seem that our military presence in Iraq is only making matters worse? If we are truly interested in giving Iraq back to Iraq, should we not let the civil authorities handle the internal dissent between factions? We could help them by giving them the tools to do it but wouldn't the best thing for Iraq be for us to be out of the pictu
  • Standing and mootness are the highest bars to overcome when appealing constitutional issues. Since the court can only decide an "actual case or controversy," the governments actions here would seem to let them off the hook. Fortunately, voluntary cessation of wrongful action once a case has been brought does not moot the case, since the defendant could simply resume the wrongful behavior once the case was dismissed.

    I don't think this argument will go far, but it is standard legal practice to throw everythi
  • The Government is basically saying that since they are now in compliance with statutory rules guiding FISA warrants, that the original plaintiffs, who won the suit under appeal, no longer have standing. Yet their pleading arrogantly begs for an appeal determination by denying the original case controls, and that the compliance to FISA warrant rules is not the result of them following the lower Court's determination. From the supplemental submission:

    This suit is predicated on the notion that the TSP is un

  • I CAN'T be alone in thinking:

    10 Print "PUT THEM IN JAIL."
    20 goto 10
  • Yes, I am a card carrying member of the ACLU.
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