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).

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

[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).

Re:it's like

[Mr. Underbridge]

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?

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

[nietsch]

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.

I Got Better

[Doc Ruby]

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.

If they win

[Hennell]

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?

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

[misanthrope101]

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.

Re:Study of Kafka

[PhilipMarlowe9000]

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 it doesn't say that everyone gets it." This is a fatuous argument, and it ignores hundreds of years of precedents, but it works for Bush. "Quick and dirty" is his motto.

Exactly. If it were a security matter,

[Beryllium Sphere(tm)]

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.

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

[orielbean]

Exactly - FISA was designed not to harass or reduce the amount of wiretapping, but rather to act as more of a recordkeeper. Our intelligence services were very skilled at not following the rule of law and instead applying thier own justification for doing things as was convenient at the time.

If you or I do this at a job, you have people who oversee you and tell you how to stay in compliance. FISA allows you to get the warrant after the fact to give time-sensitive matters precedent over procedure.

Bush wanted to stay away from FISA because he was doing things that are illegal in his scope of info gathering. If he had actual evidence of wrongdoing, or a true suspicion that could have been substantiated by FISA (which is so broad as to be ridiculous compared to what real police go through for warrants), then he could get every single warrant he wanted.

I think FISA has rarely (if ever?) denied a single warrant.



They are the recordkeeper, and their job is to record who gets tapped, why you think they need to be tapped, and how you are going to wiretap them. The neo-con line was always that laws got in the way of necessary action. Oversight gets in the way of criminal behavior - that's why Walmart has cameras watching the store. The cameras do not impede my shopping in any way, unless I also am stealing or invading Target without a good reason.