Government Seeks Dismissal of Spy Suit

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).

Not FISA court approval

[Anonymous Coward]

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]

Re:Not FISA court approval

[Guppy06]

"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!

Section D of the government filing

[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.

Re:Section D of the government filing

[$RANDOMLUSER]

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.

Summary of U.S. government corruption

[Futurepower(R)]

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.

Re:So lets see if I have this chain of events righ

[mrseth]

> Using it as an excuse for ex post facto warrants and attempts at all encompssing listening systems should not be tolerated.

It is my understanding of FISA that getting a warrant after the fact is perfectly legal if the warrant is obtained within 72 hours. The Bush administration refused to even do that! The reason FISA exists is so that someone outside the administration (i.e., at least one federal judge) is aware of who and what is being wiretapped and will hopefully keep them from abusing the power of the intelligence services as had been the case from WWII to Watergate. During the 1960's the government was spying on the likes of Martin Luther King, Vietnam War protesters, and many others who did not warrant it. The government even had the audacity to attempt to use the information gathered about King to coerce him to commit suicide [rutherford.org].

What part of the government?

[AusIV]

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.

Re:Gotta remember this

[fyngyrz]

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.