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Court Nixes National Security Letter Gag Provision

kdawson posted more than 5 years ago | from the speak-we-will dept.

Censorship 128

2phar sends news that on Monday a federal appeals court ruled unconstitutional the gag provision of the Patriot Act's National Security Letters. Until the ruling, recipients of NSLs were legally forbidden from speaking out. "The appeals court invalidated parts of the statute that wrongly placed the burden on NSL recipients to initiate judicial review of gag orders, holding that the government has the burden to go to court and justify silencing NSL recipients. The appeals court also invalidated parts of the statute that narrowly limited judicial review of the gag orders — provisions that required the courts to treat the government's claims about the need for secrecy as conclusive and required the courts to defer entirely to the executive branch." Update: 12/16 22:26 GMT by KD : Julian Sanchez, Washington Editor for Ars Technica, sent this cautionary note: "Both the item on yesterday's National Security Letter ruling and the RawStory article to which it links are somewhat misleading. It remains the case that ISPs served with an NSL are forbidden from speaking out; the difference is that under the ruling it will be somewhat easier for the ISPs to challenge that gag order, and the government will have to do a little bit more to persuade a court to maintain the gag when it is challenged. But despite what the ACLU's press releases imply, this is really not a 'victory' for them, or at least only a very minor one. Relative to the decision the government was appealing, it would make at least as much sense to call it a victory for the government. The lower court had struck down the NSL provisions of the PATRIOT Act entirely. This ruling left both the NSL statute and the gag order in place, but made oversight slightly stricter. If you look back at the hearings from this summer, you'll see that most of the new ruling involves the court making all the minor adjustments that the government had urged them to make, and which the ACLU had urged them to reject as inadequate."

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128 comments

Wow... (4, Insightful)

Darundal (891860) | more than 5 years ago | (#26137007)

...this is one of the few steps that has been taken in a long time that makes me feel the whole "land of the free" thing.

Re:Wow... (0)

Anonymous Coward | more than 5 years ago | (#26137091)

But Comrade, Think of the people!

Re:Wow... (0, Troll)

Anonymous Coward | more than 5 years ago | (#26137665)

Yes, the people must be protected from themselves. Their money must also be sequestered and divided equally among the masses for services like health care, food stamps and welfare.

We must look out for the common good of the people at the expense of those that are living some false "American Dream" of success and well-being.

Think of the homeland! Think of how taking care of those unwilling to do for themselves will benefit Mother America.

Re:Wow... (0)

Anonymous Coward | more than 5 years ago | (#26137861)

You are correct comrade.

The collection and control of resources for the common good is the noble good of our cause! We cannot let these aristocratic judicial enemies of the people continue to rob the new ruling class of the tools to ensure the success of the proletariat. The bourgeoisie and their nightmare dream pit themselves against the people's efforts to serve themselves by demanding to leak national security weaknesses as soon as the state finds them.

Do not worry though, through a series of market misteps, the Bourgeoisie pig dogs will be beggars to the success of the proletariat with their capitalist failures!

Re:Wow... (0)

Anonymous Coward | more than 5 years ago | (#26137097)

Yes....yes....OH YESSSSS!

As a freedom-loving American, I just blew a chewy wad of ecstasy in my pants!

Re:Wow... (0)

Anonymous Coward | more than 5 years ago | (#26138365)

As in chewy consistency or Chewbaccaesque proportions? Either way, here's a tissue, and eww.

Re:Wow... (0)

Anonymous Coward | more than 5 years ago | (#26137177)

How so?

Essentially the court said "no, you don't get this power, WE do!"

It's the courts grabbing at power from the executive branch. It has nothing to do with freedom and everything to do with the courts wanting more powers for themselves.

Note that the government can still gag people who receive such letters - they just need the court's approval.

It's a power-grab by the courts, pure and simple. Not that it's a bad thing, spreading out power is good, but don't think there's any altruism anywhere in the ruling.

Re:Wow... (4, Insightful)

slashdotlurker (1113853) | more than 5 years ago | (#26137279)

You are right. The courts are just "grabbing" back the power that was given to them by one of those pesky Bill of Rights thingies.

Re:Wow... (2, Funny)

Anonymous Coward | more than 5 years ago | (#26137287)

You're not quite up to speed on that "checks and balances" thing. You almost had it in your last sentence though.

Re:Wow... (3, Insightful)

Sloppy (14984) | more than 5 years ago | (#26137307)

Power grab or power retention? Is "prevent speech" one of Congress' or the executive's enumerated powers?

Re:Wow... (2, Informative)

Anonymous Coward | more than 5 years ago | (#26137325)

Posting as AC to make it quick...

That's the entire point: It has always been in the realm of the courts to decide things: Is a law constitutional/fair/etc? Is this information going to do more harm or more good if public? (ever hear of a gag order on a case? Happens all the time.)

The original problem was that the Executive branch was placing itself above all review. In their interpretation, Congress shouldn't be able to outlaw or confine the power (yeah, I know: They started this whole mess...), and the Courts shouldn't be able to negate, throw out, or limit the exercise of Executive power.

The purpose (IMHO) was to make sure no one was out of control...I think there was a phrase for it...

(..dusts off old terminology...) Oh yea, it's called "checks and balances."

Re:Wow... (1)

jcr (53032) | more than 5 years ago | (#26138125)

Oh yea, it's called "checks and balances."

Now if there was just some way to make the congress actually step up and assert the power it has instead of shirking it...

-jcr

Re:Wow... (5, Insightful)

Anonymous Coward | more than 5 years ago | (#26137375)

Apparently you are unfamiliar with the whole "separation of powers" concept. It always was the of the judicial branch to review the actions of the executive branch.

Legislative Branch: Create/Modify laws
Judicial Branch: Review/Interpret laws
Executive Branch: Enact/Enforce laws

The NSLs were one case where the Executive branch was deciding for themselves what was and wasn't legal. That's bullshit.

Re:Wow... (4, Insightful)

Shadow of Eternity (795165) | more than 5 years ago | (#26137591)

Except nowadays people think that's a bad thing because instead of checks and balances it's called "activist judges".

Re:Wow... (1, Insightful)

genner (694963) | more than 5 years ago | (#26138343)

Except nowadays people think that's a bad thing because instead of checks and balances it's called "activist judges".

That's because they had a nice streak of creating laws rather than enforcing rights. It's good to see them doing something useful for a change.

Re:Wow... (2, Informative)

Tetsujin (103070) | more than 5 years ago | (#26138755)

Except nowadays people think that's a bad thing because instead of checks and balances it's called "activist judges".

That's because they had a nice streak of creating laws rather than enforcing rights.

What laws?

Re:Wow... (2, Informative)

Shadow of Eternity (795165) | more than 5 years ago | (#26139577)

Seconded. I've heard that alot but so far nobody has actually been able to provide anything that could really be considered creating a new law from scratch.

Re:Wow... (0)

Anonymous Coward | more than 5 years ago | (#26138633)

Not quite true. It is also the Legislative Branch's responsibility to check the judicial and the executive branch. I just finished teaching this specifically.

In Soviet Russia (0)

Anonymous Coward | more than 5 years ago | (#26138217)

The state silences ... wait, never mind.

Am I the Only One That Read That As ... (1, Interesting)

Anonymous Coward | more than 5 years ago | (#26137011)

Court Nixons National Security Letter Gang Protection?

Re:Am I the Only One That Read That As ... (0)

Anonymous Coward | more than 5 years ago | (#26137803)

I didn't, but then the first thing that occurred to me was that the gag started "Two National Security weenies walk into a bar. The first one says"

Re:Am I the Only One That Read That As ... (1)

Dripdry (1062282) | more than 5 years ago | (#26140337)

I read it precisely that way, and I would mod you up if I still had the points.

Bravo, sir!

On a slightly related note: I sure hope this means they can bring some things to light that allow us to banish 90% of the people in this administration to some dark continenet where they can't harm anyone ever again.

no kidding. (5, Informative)

SinShiva (1429617) | more than 5 years ago | (#26137071)

"We are gratified that the appeals court found that the FBI cannot silence people with complete disregard for the First Amendment simply by saying the words 'national security,'" said Melissa Goodman

Re:no kidding. (4, Insightful)

zappepcs (820751) | more than 5 years ago | (#26137125)

Now, 250 million Americans should be writing to the Obama organization and asking why the fuck it was allowed in the first place and what is HE going to do about it... in the next 12 months, not how will he leave it to the next election.

Re:no kidding. (2, Interesting)

SinShiva (1429617) | more than 5 years ago | (#26137259)

Obama voted to reauthorize the USA PATRIOT Act, which extended the Act, but with some amendments. Such amendments would clarify the rights of an individual who has received FISA orders to challenge nondisclosure requirements and to refuse disclosure of the name of their attorney.

He voted against extending the USA PATRIOT Actâ(TM)s Wiretap Provision on March 1, 2006. This bill would give the FBI the authority to conduct âoeroving wiretapsâ and access to business records. Voting against this bill would prolong the debate, keeping the USA PATRIOT Act provisional whereas voting for this bill would extend the USA PATRIOT Act as permanent.

hmm. Wikipedia [wikipedia.org]

Re:no kidding. (4, Insightful)

zappepcs (820751) | more than 5 years ago | (#26137461)

Yes, as a junior senator, voting is something you can do about not letting it get worse. He's president elect now and has the ear of everyone in the beltway and the world.... so.... what is he going to DO about it? He can't vote against it anymore in the Senate. Where will his veto votes be spent? It's a nice history, that, but what is his plan to fix the problems. So many promises are broken on the day after inauguration. What is Mr Obama's plan going forward?

Re:no kidding. (1)

SinShiva (1429617) | more than 5 years ago | (#26137521)

you are right about that. obama is a people pleaser, it's likely he will seek out a compromise nullifying the extremities of the patriot act, while still keeping it useful under certain conditions in the event of an actual terrorist plot. i'll be curious as to how he goes about achieving that goal, though

Re:no kidding. (0, Troll)

bigstrat2003 (1058574) | more than 5 years ago | (#26137637)

So, in other words, he'll do nothing. As anyone who's been paying attention to him would know by now. He not only voted to extend the patriot act, but he voted for the FISA amendments.

Obama's position on civil liberties is clear. He doesn't believe in them any more than Bush did. Hopefully the other branches of our government can keep him from running rampant, or else we are well and truly fucked.

Re:no kidding. (5, Insightful)

icebrain (944107) | more than 5 years ago | (#26138049)

Obama's position on civil liberties is clear. He doesn't believe in them any more than Bush did.

His positions on liberties and freedoms are like those of most politicians. They all promote freedom to do "harmless" stuff, because it's not a threat to them or their power. But it's very rare to find one who promotes the "dangerous" ones. Being able to speak freely about and criticize the government (and call them on it when they screw up), habeas corpus, keeping and bearing arms, the right to privacy (both physical searches and observation)... those are ones that keep the government from exercising absolute control. There's a reason those things are the first things mentioned in the bill of rights, and in very clear terms; they knew the government would sooner or later try to restrict that.

Re:no kidding. (0)

Anonymous Coward | more than 5 years ago | (#26138333)

So, in other words, he'll do nothing. As anyone who's been paying attention to him would know by now.

I'm curious about something. How much did you "know" about Bush in 2000? Be honest now.

Re:no kidding. (1)

bigstrat2003 (1058574) | more than 5 years ago | (#26140387)

I "knew" nothing because I was 15 that year, and didn't bother paying attention to an election I couldn't vote in. About all I knew about him was that he was probably a liar (in my book, every politician is a liar unless proven otherwise by his actions), but at least he didn't have the audacity to cook up the whoppers Al Gore coughed up in that campaign (for which he was deservedly derided).

Re:no kidding. (1)

AceofSpades19 (1107875) | more than 5 years ago | (#26139497)

I doubt Mccain cares about our rights any more then obama does, so its a lose-lose situation

Re:no kidding. (1, Flamebait)

bigstrat2003 (1058574) | more than 5 years ago | (#26139935)

Of course it was lose-lose. I never said McCain was a better choice. What's been lost on most people this entire election season is that both candidates were bad for us. Getting into an argument of who was less bad was missing the fundamental problem. The problem is, American voters tend to be idiots, and are so damned partisan about things that they thing the worst possible thing is for the other guy to win - even though he won't make much of a difference. You need to think long-term, and realize that if you get a foot closer or two feet closer to the precipice every minute, you're still going to die. You need to figure out how to make the situation better, not less bad.

Re:no kidding. (1)

AceofSpades19 (1107875) | more than 5 years ago | (#26140159)

So how would the american voters make anything better?

Re:no kidding. (2, Insightful)

bigstrat2003 (1058574) | more than 5 years ago | (#26140367)

Well, people aren't willing to give up their partisan attitude, so, the most viable option is probably to implement a preferential voting system so that people can vote for who they really want, while not screwing over their "safe" choice (of course, the scary possibility that people actually think these assholes are the best for the job exists, but I'm hoping that's not the case). The preferred option is for people to actually look at more than just two candidates and call it a day. Now, surely many third-party candidates are every bit as flawed as the major candidates, but surely at least one out of the pack must have some worth, which is more than we can say for McCain or Obama (yeah, moderation abusers, I criticized him, mod me down again).

Really, though, at this point the most important thing is to get some fresh blood into the system somehow. What we have now is a bunch of people who refuse to vote for someone who isn't in the big parties, and two big parties who are so corrupt that it makes it nigh-impossible for anyone who actually wants to change things to get power. I don't care if we accomplish it by reforming the major parties, or making third parties viable, but someone has to get in there and get some actual change done, not the "change" that candidates have promised us for as long as I can remember (which, of course, is always a completely empty promise).

Re:no kidding. (1, Interesting)

Smidge207 (1278042) | more than 5 years ago | (#26137149)

SinShiva, if you're ok with some guy who was previously in a loving relationship with a girl, with the consent of her family, having his life destroyed because the relationship turns sour, then you're not over whatever it was that happened to you. LOL, wut?

=Smidge=

Re:no kidding. (0)

Anonymous Coward | more than 5 years ago | (#26137175)

epic fail. how the fuck do you completely miss an article?

+1 erotic! (-1, Troll)

Anonymous Coward | more than 5 years ago | (#26137095)

you homos can gag on my cock.

Re:+1 erotic! (-1, Flamebait)

Anonymous Coward | more than 5 years ago | (#26137371)

You couldn't even gag a child with that cock.

Re:+1 erotic! (0)

Anonymous Coward | more than 5 years ago | (#26138237)

You are incorrect, but only because you failed to consider the godawful smell

Fuck the ACLU (-1, Flamebait)

Anonymous Coward | more than 5 years ago | (#26137117)

The ACLU is working on the side of terrorism.

Fight the ACLU. [stoptheaclu.com] Donate today, or submit tomorrow.

Re:Fuck the ACLU (0)

Anonymous Coward | more than 5 years ago | (#26137291)

The ACLU isn't all bad. However, that first article about Planned Parenthood is right on. It was set up by known eugenicist and racist Margeret Sanger. She felt it was her duty to kill as many black babies as possible. You can find plenty of letters she wrote about that.

Not surprisingly, Bill Gates' father was the President of Planned Parenthood. Now he is spending his billions on eugenics projects in his tax-free foundation, just like the Rockefellers.

However, the ACLU does some good. Just read this article on how the government is setting up a dossier on ever American citizen.
http://www.aclu.org/privacy/spying/14999res20040210.html [aclu.org]

Does this only apply in the 2nd district for now? (4, Interesting)

Dr. Manhattan (29720) | more than 5 years ago | (#26137195)

Since it was the U.S. Court of Appeals for the Second Circuit, does this ruling only apply in New York, Vermont, and Connecticut?

Re:Does this only apply in the 2nd district for no (4, Informative)

Blindman (36862) | more than 5 years ago | (#26137451)

Technically speaking, yes. However, any circuit court or district court (in another circuit) will either follow this decision or explain why this decision is wrong. This ruling does make a contrary result in another circuit somewhat less likely.

Re:Does this only apply in the 2nd district for no (0, Offtopic)

skarphace (812333) | more than 5 years ago | (#26139589)

Technically speaking, yes. However, any circuit court or district court (in another circuit) will either follow this decision or explain why this decision is wrong. This ruling does make a contrary result in another circuit somewhat less likely.

Please cite this. It's a U.S. Federal court. It's rulings should apply to the whole of the country. From what I know, they only separate into districts for managing caseload. Hence in the northwest, one court spans a whole crapload of states and the northeast is much smaller.

Next Step: Detain, Try, Convict, and Sentence (0, Offtopic)

Anonymous Coward | more than 5 years ago | (#26137201)

this War Criminal and Shoe Ducker [youtube.com]

Cordially,
Kilgore Trout

Re: Next Step: Detain, Try, Convict, and Sentence (1)

mcgrew (92797) | more than 5 years ago | (#26137903)

"So what if somebody threw a shoe at me?" -Bush on having Iraqi shoes thrown at him

Re: Next Step: Detain, Try, Convict, and Sentence (2, Funny)

sa1lnr (669048) | more than 5 years ago | (#26138885)

They were launched in under 45 minutes too. ;)

HaHa (-1, Offtopic)

Anonymous Coward | more than 5 years ago | (#26137203)

Fuckers.

great news (5, Insightful)

Anonymous Coward | more than 5 years ago | (#26137257)

Well, congratulations America.
It is very nice to see a resurgence of freedom in your country.

The question/task for the future is to figure out how to prevent this sort of abuse from happening again.
It has been somewhat disturbing to see how easily your executive can disregard your highest laws with impunity only to have their actions repealed years later.

I mean, it is nice to have a constitution that declares things like a right to free speech and habeus corpus (or however that is spelled) but if the government can break that law for years without any legal sanction then is it anything but an empty statement of principles?

George Bush has proven that the American constitution has no teeth.
If an American president decides to break the law (any law) they cannot be stopped or punished in any way. The most that can happen is that they will be asked to stop... usually long after they have finished anyway.

Short of kidnapping white women is there anything your president cannot do? will your police forces EVER do anything to stop a president from breaking a law?
The answer seems to be no.

Re:great news (4, Interesting)

adrenaline_junky (243428) | more than 5 years ago | (#26137539)

The President swears to uphold the Constitution, but what if he chooses not to?

As you point out, the worst that happens is the court eventually overrules, but often the damage has already been done and the President can just try again in a slightly modified way.

Is such disregard for the Constitution treason?

At the very least it is an impeachable offense, but only if congress has the will to impeach.

Re:great news (5, Insightful)

johnsonav (1098915) | more than 5 years ago | (#26137937)

The President swears to uphold the Constitution, but what if he chooses not to?

He's impeached, or his actions are ruled unconstitutional, as in this case. What do you want, a coup? Sadly, these kinds of decisions are too important to undertake quickly.

As you point out, the worst that happens is the court eventually overrules, but often the damage has already been done and the President can just try again in a slightly modified way.

But what remains is a more fleshed out interpretation of the constitution. After this case, these actions are explicitly unconstitutional. It should be harder for the congress and president to overreach. But you're right, you can't undo the damage. But impeachment could stop him from trying again.

At the very least it is an impeachable offense, but only if congress has the will to impeach.

Impeachment isn't supposed to be easy. How else do you minimize the chances the impeachment isn't politically driven, but to make it hard enough that a consensus is reached on both sides of the aisle.

Re:great news (3, Insightful)

The Spoonman (634311) | more than 5 years ago | (#26138101)

But what remains is a more fleshed out interpretation of the constitution. After this case, these actions are explicitly unconstitutional.

Which makes me wonder if perhaps there's not a subtle flaw in the system? Under the current system, Congress creates and ratifies bills and then the President gives his approval and signs them into laws. In cases such as the PATRIOT Act with significant non-Constitutional provisions, it can take years before the law is tried in court, during which time hundreds, thousands or millions of people could be affected negatively by a law that's later struck down.

The simple solution, IMO, is to have a bill make a quick side trip to the SCOTUS before going on to the President. Glaringly unconstitutional items could be stripped out well in advance of them causing any problems. It means all three branches have a say in the creation of the laws, as opposed to two doing so and the third being left to clean up the mess.

Re:great news (1)

johnsonav (1098915) | more than 5 years ago | (#26138451)

The simple solution, IMO, is to have a bill make a quick side trip to the SCOTUS before going on to the President. Glaringly unconstitutional items could be stripped out well in advance of them causing any problems. It means all three branches have a say in the creation of the laws, as opposed to two doing so and the third being left to clean up the mess.

The constitution would have to be changed to allow advisory opinions. But I don't think that would be a good idea. Making the court a player in the crafting of legislation, would jeopardize the court's apolitical standing, and erode congresses legislative prerogative.

But, most importantly, the Supreme Court usually takes cases which have been argued and ruled on at the lower levels. They have the insight of well-reasoned and persuasive arguments from both sides of an issue. Those nine justices are able to draw upon the collective wisdom of all the lower court proceedings. When issuing an advisory opinion, they would have no such resource, and be expected to think of every possible outcome themselves.

Re:great news (1, Interesting)

Valdrax (32670) | more than 5 years ago | (#26138367)

Impeachment isn't supposed to be easy. How else do you minimize the chances the impeachment isn't politically driven, but to make it hard enough that a consensus is reached on both sides of the aisle.

Golf clap for theory, but let's face it, the only times articles of impeachment have ever been voted on in Congress have all been for political reasons and not for actual Constitutional violations.

Andrew Johnson was impeached for a violation of the Tenure of Office Act (which was passed over his veto) which required Senate approval for the sacking of any executive officer -- including the Secretary of War. (Modern Supreme Court jurisprudence would not allow such restrictions on cabinet level positions directly related to the traditional executive powers, like the exercise of war. A 1926 case later noted in dicta that the Act would've been unconstitutional if challenged.)

In other words, Johnson was impeached for breaking an unconstitutional law. Furthermore, the text of the law was vague enough that it's hard to tell whether he actually violated it or not, given that the Secretary of War wasn't appointed during his tenure, and was fired after his one month grace period hold-over.

The real background of the fight was Johnson's headbutting with Congress over the Reconstruction. He favored an easier process for the Southern states to be readmitted. Congress favored a very harsh Reconstruction and passed laws repeatedly over his veto. The real debate was largely over his politics and not his acts.

Similarly, Clinton was impeached for lying under oath about getting a blow job. The Constitution limits impeachment to "Treason, Bribery, or other High Crimes and Misdemeanors," but the latter term is undefined. Again, the real question here was not any abuse of power by Clinton but pure power politics and an attempt to tarnish the opposition to the majority party in Congress.

Impeachment cannot happen without an opposing party in majority control and with enough spine to stand up unless the President does something REALLY egregious. Otherwise, if he's just pushing the borders of executive power, as long as he does it in a way that his party likes, then impeachment cannot be triggered.

Re:great news (1)

johnsonav (1098915) | more than 5 years ago | (#26138653)

Golf clap for theory, but let's face it, the only times articles of impeachment have ever been voted on in Congress have all been for political reasons and not for actual Constitutional violations.

But neither of the impeachments in our history have lead to a conviction by the Senate. I think that only reinforces my point.

Impeachment cannot happen without an opposing party in majority control and with enough spine to stand up unless the President does something REALLY egregious. Otherwise, if he's just pushing the borders of executive power, as long as he does it in a way that his party likes, then impeachment cannot be triggered.

I think the obvious counter-example is Nixon. I'm pretty sure he would have been impeached (had he not resigned first), even if the congress had been Republican. And if anyone deserved it, he did.

I only want the congress to act if the president has done something really egregious. The other checks and balances in our system, judicial review and congresses power of the purse strings, seem to do a pretty good job of restraining the president's power without resorting to throwing the sitting President out every time there is a political pissing match.

I would rather have a government with a little executive overstepping which is eventually remedied by the courts or the voters, than a system where the sitting President is in constant, real danger of being impeached.

Re:great news (0)

Anonymous Coward | more than 5 years ago | (#26138625)

According to Wikipedia [wikipedia.org] treason is defined as (emphasis mine):

Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.

Well since the terr-o-rist hate our freedoms and GW keeps taking them away sound like he is adhering to our enemies. Makes him a traitor in my book. And what do we do to traitors during time of war?

captcha: musing

Re:great news (0)

Anonymous Coward | more than 5 years ago | (#26138703)

That's about as coherent an argument as the anti-patent fools trying to explain their ideas about prior art. Ah, Slashdot, where the weak-minded come together to declare themselves intellectually superior.

Re:great news (0)

Anonymous Coward | more than 5 years ago | (#26137577)

"Short of kidnapping white women is there anything your president cannot do? will your police forces EVER do anything to stop a president from breaking a law?
The answer seems to be no."

The burden of stopping him rests with congress in the form of impeachment. I leave the rest as an exercise for the reader.

Oh please... (0)

Anonymous Coward | more than 5 years ago | (#26137587)

IF Bush had broken a law, there would have been an impeachment. Fitzgerald investigated the CIA leak claims and could only indict Scooter Libby for lying to a grand jury (sound familiar?)

When congress or the courts said "no" the Bush Administration complied.

Re:Oh please... (0)

Anonymous Coward | more than 5 years ago | (#26138143)

1) You're talking about the leaking of Valerie Plame's identity, which is but one of the myriad objectionable actions the administration has taken.

2) Not all guilty parties do time. In fact, not all guilty parties are tried. If enough people lie and obfuscate, the real criminals can escape prosecution. At least we can convict the people who lie.

3) You're forgetting the signing statements, which were the administration's way of refusing to fully comply with acts of congress.

4) The gag orders prevented any meaningful review of the administration's actions. It has taken this long for the gag order to be ruled unconstitutional. Is that all it takes to circumvent the Constitution?

Re:great news (1)

KeithJM (1024071) | more than 5 years ago | (#26137635)

George Bush has proven that the American constitution has no teeth. If an American president decides to break the law (any law) they cannot be stopped or punished in any way. The most that can happen is that they will be asked to stop... usually long after they have finished anyway.

You could argue that slavery, the internment of Americans of Japanese descent and the US Government's treaties with Native American tribes already made that point. The real thing it implies though is that (except for the Native Americans, I guess) it eventually works. We'll have to wait to see how Guantanamo and the warrant-free wiretapping work out to say for sure. Of course a president can overreach his power. It isn't practical for the Supreme Court to monitor every word that comes out of his mouth. The point is not that the checks and balances are instantaneous, just that they work eventually.

Re:great news (0)

Anonymous Coward | more than 5 years ago | (#26138083)

The point is not that the checks and balances are instantaneous, just that they work eventually.

Agreed, and that is a good thing.
Still, it would be nice to prevent the abuses if possible.

Would it perhaps be possible to have a neutral review of legislation (and perhaps also executive orders) PRIOR to passage to ensure that they are constitutional?

Re:great news (5, Interesting)

johnsonav (1098915) | more than 5 years ago | (#26137671)

The question/task for the future is to figure out how to prevent this sort of abuse from happening again. It has been somewhat disturbing to see how easily your executive can disregard your highest laws with impunity only to have their actions repealed years later.

Actually, this is how we prevent it from happening again. And, to be fair, it wasn't the executive abusing power. He was given it by the congress.

Congress passes all kinds of laws which are later found to be unconstitutional by the court. The ultimate check, in our system, on the congress and president is the judiciary. How would you do it?

George Bush has proven that the American constitution has no teeth.

This case is an example of those teeth. Is it as timely as I would like? No. But I would rather have the correct decision after a well reasoned and thought out case, than a quick gut reflex (which is the role the congress usually plays). Assuming this decision is upheld on appeal, its now basically part of the constitution. I don't want that to be too easy or quick.

Re:great news (3, Insightful)

vux984 (928602) | more than 5 years ago | (#26137909)

Congress passes all kinds of laws which are later found to be unconstitutional by the court. The ultimate check, in our system, on the congress and president is the judiciary. How would you do it?

By making there be consequences for passing an unconstitutional law, for starters.

They swear to uphold the constitution and then introduce an unconstitutional law... there should be real consequences for this. You know, to give them an incentive not to do it.

I'm not suggesting making it a criminal offense or sending them to federal 'pound me in the ass' prison or anything, but perhaps anyone that sponsors an unconstitutional bill should automatically be removed from congress. ie "fired" and is not eligible to run again, nor serve in any position in government higher than 'X'.

But I would rather have the correct decision after a well reasoned and thought out case, than a quick gut reflex (which is the role the congress usually plays).

If there were real consequences to introducing unconstitutional laws, maybe they'll think a little harder.

Re:great news (2, Insightful)

johnsonav (1098915) | more than 5 years ago | (#26138059)

By making there be consequences for passing an unconstitutional law, for starters.

But who decides what's unconstitutional? The Supreme Court has explicitly reversed itself a number of times. I'm not saying its right that the congress passes laws without giving any thought to constitutionality. But, most of the time, there is not enough case law (or the case law is conflicting) to be sure what you are passing is constitutional or not. Even in this case, as outrageous as it seems, there were genuine constitutional questions which had never been directly addressed.

I agree that congress has abdicated its responsibility to, at least, think about the constitutionality of the laws it passes. But there is no real, cut and dried, solution.

Re:great news (4, Insightful)

vux984 (928602) | more than 5 years ago | (#26138709)

But who decides what's unconstitutional?

The supreme court.

The Supreme Court has explicitly reversed itself a number of times.

I don't really see how that's an actual problem. Firstly, it really doesn't happen -that- often. Secondly, if the court rules against something, and a congressman loses his job, and then down the road the supreme court reverses itself... in the big scheme of things what was the harm?

Remember, the congressman sponsored a law that he SHOULD have at least known had a good probability of being challenged in the supreme court, and a good estimation of how it would fare there, and he knew what the consequences were of it not passing. He made an INFORMED decision whether to gamble on it.

Seriously, I can live with that.

Besides, if anything, congress really shouldn't be passing laws that have even a reasonable CHANCE of being overturned in the supreme court. I don't really want laws that run "right up the line" either. If you are considering a bill and your lawyers and advisers are calculating it will probably be challenged, and that if challenged that 4 supreme justices will side with it, and 4 probably won't, and it will comes down to how Ginsberg is going to interpret the definition of X...then hey, maybe its not a very good law to gamble your career on! It probably should be reworked a bit so that it will sail through the supreme court.

As a bonus we'd also have fewer supreme court reversals as fewer laws would be proposed that tried to squeak up against the line without crossing it. Congress would be motivated to give the constitution some "space", which is a good thing.

To use a /. car analagy... if the legal limit on drunk driving is 0.08, and you know you lose your license if you get caught with that... well, you don't drink up to 0.079 and then hop into your car. You make damned sure you are comfortably away from blowing over. You don't want to blow 0.081 in a breathalyzer, and then squeak out of a DUI via a more precise blood test administered at the police station. Better to just keep yourself well below the legal limit and sail through.

Re:great news (4, Insightful)

johnsonav (1098915) | more than 5 years ago | (#26138863)

I see you're point. But instead of enacting a law, with technicalities and loopholes, we, the voters, should be the ones removing the congressmen from office. The two (or six) years between elections is usually less time than it takes for a case to be appealed up to the Supreme Court. And it doesn't require a constitutional amendment that these congressmen would never vote for.

If we, the citizens, want to protect the constitution, then we should step up and take responsibility for defending it from our politicians.

Re:great news (1)

Archangel_Azazel (707030) | more than 5 years ago | (#26140579)

"If we, the citizens, want to protect the constitution, then we should step up and take responsibility for defending it from our politicians." --
DAMN STRAIGHT.

Had I mod points dear sir, you would be getting some. Now if we could just rustle up some people with balls over the next few elections, maybe we could keep ourselves out of the Communist States of America a bit longer.

Re:great news (3, Insightful)

Aaul (695153) | more than 5 years ago | (#26138529)

One of the consequences, at least what is supposed to be a consequence, relies on the people. When our elected officials do stupid things like create unconstitutional bills it is our responsibility as citizens of the nation to take notice and use our only power: vote them out of office. Unfortunately there are not enough people who take that responsibility seriously these days. The people are part of the checks and balances just as much as the executive, judiciary, and legislative are.

Note, I do realize that it can be damn hard to vote some of these idiots out, especially in areas of the country where they are firmly ensconced and have a constituency that is larger either clueless; or worse, in agreement with some of the ridiculous ideas they come up with.

Re:great news (1)

vux984 (928602) | more than 5 years ago | (#26138947)

One of the consequences, at least what is supposed to be a consequence, relies on the people. When our elected officials do stupid things like create unconstitutional bills it is our responsibility as citizens of the nation to take notice and use our only power: vote them out of office.

And my point is we shouldn't have to. If they pass an unconstitutional law, it should be automatic, and permanent. Having the people have to take action to fire a politician who passed an unconstitutional law is absurd as having the people launch grassroots campaigns to convict criminals.

Can you imagine if the police said, "Hey we caught the guy who keyed your car, but if you want him punished, you can start by organizing a petition - you'll need 10,000 signatures. Only at that point will the DA press charges, and in the meantime the guy who keyed your car... he'll be collecting signatures too. If he gets 10,000 before you do, you lose. Oh, and he's more popular than you."

Re:great news (1)

TimothyDavis (1124707) | more than 5 years ago | (#26140735)

By increasing the consequences, you decrease the likelihood that the courts will correct these problems. Can you imagine the complete circus that would have been erected if the outcome of this decision had a large negative effect on President Bush?

As much as I hate the things that this administration has done; I do want the courts to be able to do their jobs and clean up the mess without being harassed. While judges have some protections against political retribution, they are not immune.

Re:great news (2, Insightful)

Anonymous Coward | more than 5 years ago | (#26138241)

Congress passes all kinds of laws which are later found to be unconstitutional by the court.

That seems to be the heart of the problem.
Congress knows (i presume) that laws they pass must be constitutional. In practice they do seem to pass a lot of laws that are not constitutional.
In essence, the writing and passing of such a law is an error. The system of judicial review detects and corrects those errors after a delay of a few years.

Would it not be possible to simply 'move up' the process of judicial review and perhaps make it mandatory and automatic?

The damage that can be caused by an unconstitutional law could be limited to 6 months or a year instead of many years.

This case is an example of those teeth. Is it as timely as I would like? No. But I would rather have the correct decision after a well reasoned and thought out case, than a quick gut reflex (which is the role the congress usually plays)

Yes, I agree, and no, it is not as timely as I would like ;)
But more than that, there seems to be no downside to passing an unconstitutional law. While the error will be corrected and the law struck-down there is no penalty for the infraction.
One can pass a bad law and 'profit' by it for 2-7 years without fear of penalty.
There is no dis-incentive like there is with most civil/criminal law.

I do appreciate that it is a very different situation and that the solutions used for criminal law cannot simply be copy-and-pasted.
I do think that the concept of a disincentive of some sort would be good.

Re:great news (1)

johnsonav (1098915) | more than 5 years ago | (#26138481)

I do think that the concept of a disincentive of some sort would be good.

We have it, but don't use it often enough. Its called, "voting those bastards out of office".

Re:great news (0, Troll)

zzsmirkzz (974536) | more than 5 years ago | (#26137735)

George Bush has proven that the American constitution has no teeth.

It is not the American Constitution that has no teeth, it is the American people and I say this as an American. I am disgusted with how sad, feeble, and pathetic the average American is and how unwilling they are to fight for anything. Hell, they don't even fight for their right to keep guns, the very thing that will help them should they find a need to fight again, and the only thing that forces the government to listen to them.

There is nothing magical about our Constitution. (4, Insightful)

khasim (1285) | more than 5 years ago | (#26137879)

It is not the American Constitution that has no teeth, it is the American people and I say this as an American. I am disgusted with how sad, feeble, and pathetic the average American is and how unwilling they are to fight for anything.

And the Congress Critters are elected from those same Americans.

Some of them are good. I'm in Washington state and all of my Congress Critters voted against the telcom immunity. And I voted for them again.

But the Constitution does not have any magical power to protect us. It is a statement that WE must support. Our forefathers died for those words.

Now, our Congress Critters won't even risk re-election to uphold them. Hell, they won't even risk the CHANCE that their opponents might say something mean about them.

Which is why Congress's approval rating is even lower than Bush's.

Get educated. Get organized. Then hold your Congress Critters accountable for their votes and their absences. That's the only way to get real change.

Re:There is nothing magical about our Constitution (2, Informative)

Chris Burke (6130) | more than 5 years ago | (#26139897)

But the Constitution does not have any magical power to protect us. It is a statement that WE must support. Our forefathers died for those words.

Exactly! I like to think of it this way: The Constitution is not a list of Things That Are -- meaning we have freedom of speech because the 1st Amendment says we do. The Constitution is instead a list of Things That We, The People, Demand -- meaning that the 1st Amendment says we demand that Congress respect our freedom of speech, and if they don't they'll get the King George treatment.

To the extent that we have retained our rights, it is because we have refused to abrogate them, and to the extent we have lost our rights, it is because we have allowed them to be taken without consequence.

Re:great news (0)

Anonymous Coward | more than 5 years ago | (#26137781)

This type of abuse, as you call it, is an inherent part of the system. The U.S. Constitution is not the clearest of documents, thus there is often a difference of opinion as to its contours. This gray area is pretty much up to the discretion of the president. Therefore, up until the president goes way outside of the gray area, people will just go along.

Therefore, as a practical matter, the U.S. president is free to do whatever he wants to do up to the point it becomes worth it for somebody to make him stop. This isn't really a good thing, but the alternative is having president by committee, which would have its own problems.

Re:great news (0)

Anonymous Coward | more than 5 years ago | (#26137823)

You talk as if the patriot act was the work of only the president/executive branch. Don't forget that the legislative branch is the one who authored and voted for this "deference to the executive.". I see this as a court restricting the rights of the legislative branch.

Re:great news (1)

sexybomber (740588) | more than 5 years ago | (#26137837)

I'm pretty sure the police wouldn't stop the President even if they could.

That whole "enforce the laws" part of the separation of powers could theoretically be extended to make the nation's police forces directly answerable to the President.

Of course, then the President would have, essentially, a standing army stationed in the United States... which violates several more laws.

Re:great news (1)

johnsonav (1098915) | more than 5 years ago | (#26138153)

That whole "enforce the laws" part of the separation of powers could theoretically be extended to make the nation's police forces directly answerable to the President.

The federal police (FBI, ATF, DEA, etc) are all answerable to the President. That's what executive means. That's a major part of the President's role in the separation of powers. The congress controls the purse strings, but the President is their boss.

Look up Andrew Jackson's response to an unfavorable court ruling, "John Marshall has made his decision, now let him enforce it!" Its the executive branch's check on the power of the judiciary.

The Constitution Totally has Teeth (2, Insightful)

tobiah (308208) | more than 5 years ago | (#26137887)

Ya, a handful of people of were unlawfully detained, and there were attempts to repress critical comments, but when the American people finally got sick of it they were allowed to change directions. The US Constitution doesn't stop us from electing idiots, crooks, or both. But it slows them down with the checks-and-balances scheme and allows the people to get a new government without violence.
The Bush administration got away with far less than they attempted, and we've got the Constitution to thank for it.

Re:great news (0)

Anonymous Coward | more than 5 years ago | (#26137967)

will your police forces EVER do anything to stop a president from breaking a law?
The answer seems to be no.

The police alone are not responsible for stopping the president. We all are. This is the purpose of the 2nd amendment [wikipedia.org]

Re:great news (1)

mdmarkus (522132) | more than 5 years ago | (#26138283)

George Bush has proven that the American constitution has no teeth.

No, but it does have shoes.

Re:great news (0)

Anonymous Coward | more than 5 years ago | (#26138717)

George Bush has proven that the American constitution has no teeth.

True, but which constitution ever does? Neither a piece of paper nor a legal document (as in the legal entity, not the actual paper document) can defend itself.

It's up to the people to do that.

The constitution was ignored (2, Insightful)

hellfire (86129) | more than 5 years ago | (#26138729)

First let me say that my country, the ol' U.S. of A. is far from perfect. Second, let me say as an anonymous coward, you fail to let us know your own country. The UK and Canada, two countries I admire, currently have their own issues they are dealing with. You could be posting from some third world country that believes that anything the US stands for is something you refuse to stand for and therefore you are anti-constitution. I don't know. But don't throw stones at our huge glass houses. And don't shit pan the US constitution without a discussion of what failed and what didn't.

What the constitution is:
1) A document of precise, but not perfect, rules by which to found and run a government with very specific checks and balances so that no one branch of government is more powerful than others, so that not only there would be cooperation in order to pass important laws, but there would also be some competition.
2) A document with an addendum to preserve specific human rights the founders thought were important so that no state could pass laws to take away those rights.
3) A document that is changeable over time, albeit with a little difficulty, so that the change isn't whimsical.

What the constitution is not:
1) A suicide pact
2) A written in stone monolithic set of commandments
3) Psychic paper which compels the reader to always obey it's rules
4) A document that can pick up a gun and enforce itself

What happened to the constitution was that it was ignored. It was ignored because over a very long time, the public was pushed in a specific direction believing that the direction we were going was the proper one. This involved countless economic and social reasons. And it just got worse. Most people didn't see it that way, because it didn't impact them personally, and the average wage was not keeping up with inflation, the rich were getting richer and poor getting poorer, more people being impacted by NSL letters, more soldiers were dying in Iraq for what we knew to be a lie, a terribly managed natural disaster, and then finally an economic collapse followed by the most inept management seen in living memory. Eventually the public would demand a shift to a different direction.

What happened on first Tuesday of November in 2006 was the first step in what shows us the first thing that is good about the constitution. As things get worse, as more and more people are fed up with bad decisions, people begin to exercise the single most important constitutional power they have... a vote. The 2006 election was the first inkling that the US was fed up with it's president. So we voted another party into power. This didn't fix the problem, this didn't even stop the bleeding, but it did apply a tourniquet. Since then, the political will was slowly shifting away from Bush. This allowed all these things to properly come to light. Then in 2008 we used that constitutional power again, and we soundly rejected anything and everything that man stood for.

And while we flexed the constitutional rights there, other groups were going out and using the constitution for what it was for, defending these rights that Bush and cronies tried to take away. Such processes take time, and they are bearing fruit now. You may want these things to happen immediately, and am right there with you, but they don't. If we did things like this whimsically, then everything we'd do would be on a whim, and we'd be in worse shape as more bad decisions snuck into a system that didn't properly vett them, as the US system is designed to try to do.

One of the reasons why it took so long to fix this is because the will of the people, partially driven by stupidity, partially driven by fear, partially driven by group think, and partially driven by a very corrupt and very bad set of politicians, was against changing the status quo. But when it got really bad, the constitution succeeded by giving us an opportunity to return from the edge, and I think we have. A court decision like this is proof of that. Keep an eye out for further decisions like this.

This isn't the first time this has happened and it won't be the last, but this isn't football (american or otherwise) and there aren't referees looking out over the politicians screaming "FOUL! You can't do that because the constitution says so!" The referees are ourselves, and we have to fight to keep our rights. It took a while for the American public to remember that.

Gag On This: +1, Incendiary (-1, Troll)

Anonymous Coward | more than 5 years ago | (#26137453)

White Swan [youtube.com], capitalist fascist imperialists from U.S.S.A.

Yours In Socialism,
K.

Very few people could actually handle the order... (4, Funny)

erroneus (253617) | more than 5 years ago | (#26137479)

...in my experience, very few people have no gag reflex. Therefore, I believe the requirement was unconstitutional and unnatural.

Re:Very few people could actually handle the order (0)

Anonymous Coward | more than 5 years ago | (#26137873)

Ah ... but there was this one woman I knew who could at least suppress hers to good effect.

If fostering THAT sort of stamina was the intent, then I'm sure we'd have more people (men at least) lining up to support the law.

Re:Very few people could actually handle the order (0)

Anonymous Coward | more than 5 years ago | (#26138069)

How can I combine this with the "American constitution lacks teeth" comment...
 
If only there were some connection between no gag reflex and no teeth...
 
Oh well, I guess I'll have to settle for eating a popsicle...in one swallow.

This is even better than the shoe (0, Flamebait)

StefanJ (88986) | more than 5 years ago | (#26137893)

I wish this, and other reversals of the misadministration's power grab, had happened earlier in the Bush regime.

But better late than never. Think of it as a legal shoe aimed at their head.

P.S. Everyone knows where to send their spare shoes, right?

Show 'em how you really feel. [fightingliberals.com]

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