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US Gov't Can't Be Sued For Warrantless Wiretapping

Soulskill posted about 2 years ago | from the consequence-free dept.

Communications 221

Wired has an article about a ruling from the 9th U.S. Circuit Court of Appeals saying the government can't be sued over intercepting phone calls without a warrant. The decision (PDF) vacated an earlier ruling which allowed a case to be brought against the government. The plaintiffs in the case argued that the government had implicitly waived sovereign immunity, but today's ruling points out that it can only be waived explicitly. Judge McKeown wrote, "This case effectively brings to an end the plaintiffs’ ongoing attempts to hold the Executive Branch responsible for intercepting telephone conversations without judicial authorization." The ruling does, however, take time to knock down the government's claim that the case was brought frivolously: "In light of the complex, ever-evolving nature of this litigation, and considering the significant infringement on individual liberties that would occur if the Executive Branch were to disregard congressionally-mandated procedures for obtaining judicial authorization of international wiretaps, the charge of 'game-playing' lobbed by the government is as careless as it is inaccurate. Throughout, the plaintiffs have proposed ways of advancing their lawsuit without jeopardizing national security, ultimately going so far as to disclaim any reliance whatsoever on the Sealed Document. That their suit has ultimately failed does not in any way call into question the integrity with which they pursued it."

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221 comments

It's good to be the... (2)

KingSkippus (799657) | about 2 years ago | (#40910691)

Re:It's good to be the... (5, Insightful)

Jeremiah Cornelius (137) | about 2 years ago | (#40910831)

There is no law, except as a rhetoric for justifying power.

You are not a citizen - but merely a subject.

It is 1164 AD - with Nike shoes and a Prius on the curb.

so the guvmint has no one to answer to (2, Interesting)

Anonymous Coward | about 2 years ago | (#40910693)

is that the conclusion i'm reading here?

Re:so the guvmint has no one to answer to (5, Insightful)

mwvdlee (775178) | about 2 years ago | (#40910739)

I'm sure they have to justify their action to their corporate owners come next election.

Re:so the guvmint has no one to answer to (2)

BMOC (2478408) | about 2 years ago | (#40910771)

I thought that's what their stock portfolio reports were for. I mean, how else are all these elected officials becoming rich?

Re:so the guvmint has no one to answer to (4, Insightful)

BMOC (2478408) | about 2 years ago | (#40911013)

FTA:

“Under this scheme, Al-Haramain can bring a suit for damages against the United States for use of the collected information, but cannot bring suit against the government for collection of the information itself,” Judge M. Margaret McKeown wrote for the majority. She was joined by Judge Michael Daly Hawkins and Judge Harry Pregerson. ”Although such a structure may seem anomalous and even unfair, the policy judgment is one for Congress, not the courts.”

Huh? The judiciary is abdicating its own power here. It is the actions of the executive in violation of clearly spelled out laws that is the problem here. Are they suggesting that government workers cannot be sued for clear negligence w.r.t. the law because Congress did not authorize it? Did the lawyers in this case sue the legislative branch, or the executive? They should have sued the executive, and they should have won.

Re:so the guvmint has no one to answer to (4, Informative)

tnk1 (899206) | about 2 years ago | (#40911217)

Policy is always set by the legislative branch, the judicial can interpret it, and weigh it against the Constitution and see if it is overridden, but that is it.

If the court perceives that to render a judgement would effectively be legislating, they are not permitted to do that, even if they feel the current state of the law is unfair. It is Congress' job to fix bad laws that are not unconstitutional, not the courts'.

If the law made the situation possible which the Executive took advantage of, the court cannot alter the situation without some higher law to override it.

Re:so the guvmint has no one to answer to (4, Informative)

Dragonslicer (991472) | about 2 years ago | (#40912585)

If the law made the situation possible which the Executive took advantage of, the court cannot alter the situation without some higher law to override it.

Some higher law like the Fourth Amendment?

Re:so the guvmint has no one to answer to (2)

jpapon (1877296) | about 2 years ago | (#40911741)

That's the point, the government cannot be sued directly by a citizen, since the government has sovereign immunity.

The court is merely saying that unless the government explicitly decides to waive sovereign immunity, they cannot be sued. The courts do not decide when sovereign immunity has been waived, that is left up to the legislative or executive. This has always been the case in the USA.

Re:so the guvmint has no one to answer to (1)

Kjella (173770) | about 2 years ago | (#40912039)

That's the point, the government cannot be sued directly by a citizen, since the government has sovereign immunity. The court is merely saying that unless the government explicitly decides to waive sovereign immunity, they cannot be sued. The courts do not decide when sovereign immunity has been waived, that is left up to the legislative or executive. This has always been the case in the USA.

That part is fair enough, but shouldn't the constitution be considered explicitly waiving immunity? Because otherwise the government can tap dance over the 4th amendment's grave and nobody can sue them. In fact, the whole Bill of Rights would be useless.

Is anyone surprised? (1)

logicassasin (318009) | about 2 years ago | (#40910709)

Really, {add tfh}this kind of thing has been going on for decades and will continue for the foreseeable future without repercussions. It's the government, can we not all expect there to be some amount of collusion between the branches to keep this type of activity going in the name of "national security"?{remove tfh}

Re:Is anyone surprised? (3, Interesting)

cavreader (1903280) | about 2 years ago | (#40911497)

Congress passed a unambiguous law before the US entered WW2 prohibiting wire tapping to catch potential German agents in the US and 15 minutes later Eisenhower wrote an executive directive to ignore the law. If the US had been defeated in WW2 he would have been prosecuted and most likely convicted but that didn't happen and Congress decided to pretend they never passed such a law. The US constitution and associated laws are not a suicide pact. Even more astonishing is that presidents Carter, Bush1, Clinton, and Bush 2 were asked what they would have done under the same situation and all of them said they would have did the same thing. Even Obama is willing to make decisions that are technically prohibited by law but laws do not cover all situations in certain circumstances. Especially when national security is involved.

Re:Is anyone surprised? (2, Informative)

Anonymous Coward | about 2 years ago | (#40911739)

"Eisenhower"? You sure? Before WW2, Eisenhower was a newly promoted Brigadier General who'd never held a command position and certainly wasn't signing any such documents.

I would say what I think, but even anon... (0)

Anonymous Coward | about 2 years ago | (#40910713)

they're probably monitoring who I am. Good Luck All...

Abolish sovereign immunity (2)

Hatta (162192) | about 2 years ago | (#40910717)

Title says it all. The government should not be above the law. Abolish every other sort of immunity (judicial, qualified, etc) while you're at it.

Re:Abolish sovereign immunity (2)

BMOC (2478408) | about 2 years ago | (#40910751)

"Sovereign Immunity"

The very name brings to mind the reason rule of law was brought into being in the first place, so that there was one set of rules for everyone. The elite of the world seem historically hell-bent on creating one set of rules for a ruling class, and one for everyone else.

Re:Abolish sovereign immunity (2)

Anonymous Coward | about 2 years ago | (#40912249)

The government is not a person. It makes the laws. No court can touch it. This is the way the law works in the Anglo-American system, and generally in every developed system.

That said, American courts long ago worked out a clever solution. If you can't sue the government, you can sue the government officer in personam; that is, sue the officer as a regular citizen. If it's illegal for the government to do, then it's illegal for the officer, too, even if he's just following orders.

That was a novel turn, but over the years it's become harder to use, for various reasons. The last major development was allowing citizens to sue abusive federal policer officers for damage claims. That was in the 60s or 70s. But since then it's been downhill.

Generally speaking, the only thing protecting you from unlawful search and seizure are activist-judge-made exclusionary rules in the law of evidence. If you can't use it in court, then there's less incentive to do it. But if Scalia and other conservatives had their way, the only recourse you would have for unlawful search and seizure is a nominal claim for trepass or invasion of privacy, presuming you could file it from prison or Guantanamo.

This is why we have all of these seemingly silly rules that let drug dealers off the hook on technicalities. It might seem silly--and it is in an abstract sense---but it's truly the last and effectively only line of defense between you and cops walking through your door down and rummaging through your files anytime they wish.

Re:Abolish sovereign immunity (2)

CanHasDIY (1672858) | about 2 years ago | (#40910791)

Title says it all. The government should not be above the law.

It's not. [wikipedia.org]

Or rather, wouldn't be, if the People refused to allow it.

“Well, Doctor, what have we got—a Republic or a Monarchy?”

“A Republic, if you can keep it.

Re:Abolish sovereign immunity (5, Insightful)

Hatta (162192) | about 2 years ago | (#40910865)

This ruling is proof that the government is in fact above the law. The constitution means dick if you can't get the courts to enforce it.

Re:Abolish sovereign immunity (1)

Mitreya (579078) | about 2 years ago | (#40911321)

This ruling is proof that the government is in fact above the law.

That is indeed a very new development. Quite a step above the usual "Dismiss this lawsuit, because otherwise we'll have to reveal state secrets and the terrorists will kill everyone". Perhaps because this particular lawsuit is the only challenge that survived the old argument?
Any chance SCOTUS may reverse this?

Re:Abolish sovereign immunity (3, Insightful)

jpapon (1877296) | about 2 years ago | (#40912147)

It's not a new development by any stretch of the imagination. The first court case establishing sovereign immunity in the US was Chisholm v. Georgia, in 1793. That's right, three years after the Constitution was ratified.

Think about it some, who enforces the decisions of Federal courts? The Federal government. So if you brought suit against the Federal government and won, who would enforce the decision? The Feds?? You're asking the government to arrest themselves... which can't be done. You would have to make a new federal government to arrest the old one.

That would mean the courts have the power to overthrow the Federal government, which they don't.

Re:Abolish sovereign immunity (1)

Anonymous Coward | about 2 years ago | (#40912399)

None whatsoever, unless the actual language of the purported immunity waiver is truly ambiguous. Most courts, but especially SCOTUS, have always zealously protected sovereign immunity.

There was a brief period in American history when the idea of sovereign immunity was challenged. It resulted in the 11th Amendment to the Constitution, which stopped the movement dead in its tracks. The amendment seems quite narrow, but if you read the history of it, and subsequent interpretations, it effectively was the death knell for the weakening of sovereign immunity as a legal or political movement.

The only advancements since then have been in suing government officers in personam, but in the past few decades even that door has been slowly closing as courts have become more conservative.

Re:Abolish sovereign immunity (1)

jpapon (1877296) | about 2 years ago | (#40911975)

How is this insightful? It's goddamn retarded.

The US government has always had sovereign immunity.

Immunity of the United States From Suit.—Pursuant to the general rule that a sovereign cannot be sued in its own courts, it follows that the judicial power does not extend to suits against the United States unless Congress by general or special enactment consents to suits against the Government. This rule first emanated in embryo form in an obiter dictum by Chief Justice Jay in Chisholm v. Georgia, where he indicated that a suit would not lie against the United States because “there is no power which the courts can call to their aid.”858 In Cohens v. Virginia,859 also by way of dictum, Chief Justice Marshal asserted, “the universally received opinion is that no suit can be commenced or prosecuted against the United States.” The issue was more directly in question in United States v. Clarke,860 where Chief Justice Marshall stated that as the United States is “not suable of common right, the party who institutes such suit must bring his case within the authority of some act of Congress, or the court cannot exercise jurisdiction over it.” He thereupon ruled that the act of May 26, 1830, for the final settlement of land claims in Florida condoned the suit. The doctrine of the exemption of the United States from suit was repeated in various subsequent cases, without discussion or examina[p.747]tion.861 Indeed, it was not until United States v. Lee862 that the Court examined the rule and the reasons for it, and limited its application accordingly.

Source: http://www.law.cornell.edu/wex/sovereign_immunity/ [cornell.edu]

Is Wiretapping Legal Now? (5, Interesting)

ohnocitizen (1951674) | about 2 years ago | (#40910721)

If a crime lacks consequences, is it still illegal? There's no longer remedy available through criminal prosecution or civil suit.

Re:Is Wiretapping Legal Now? (4, Insightful)

Mitreya (579078) | about 2 years ago | (#40910797)

Is Wiretapping Legal Now?

Why, that depends. It would still be illegal for you to do it. Laws that can be enforced selectively are the most convenient!

Re:Is Wiretapping Legal Now? (1)

The Mighty Buzzard (878441) | about 2 years ago | (#40910813)

It lacks civil suit consequence, not criminal prosecution consequence.

Re:Is Wiretapping Legal Now? (3, Interesting)

Anonymous Coward | about 2 years ago | (#40911083)

It also lacks criminal prosecution consequences. The reason this is so is because for criminal prosecution, you need a suspect. In order to have a suspect, you need some information. You can't investigate that which is highly classified for suspects who have broken the law. Classification of government activities effectively shields anyone acting within any classified information space from outside prosecution unless whistleblowers exist.

Re:Is Wiretapping Legal Now? (1)

sconeu (64226) | about 2 years ago | (#40911173)

And who is going to prosecute the DOJ? The DOJ?

Re:Is Wiretapping Legal Now? (1)

Anonymous Coward | about 2 years ago | (#40910919)

The Supreme Court is the next step if the plaintiffs decide to go that far.

Re:Is Wiretapping Legal Now? (1)

Meeni (1815694) | about 2 years ago | (#40911237)

Illegally obtained proofs are are not acceptable as proofs during a trial. In some cases, mistrial can result from improper procedures during the inquiries. So it still has consequences somehow that the wiretapping was illegal in the first place, even though those using these illegal procedures are not held accountable.

Re:Is Wiretapping Legal Now? (0)

Anonymous Coward | about 2 years ago | (#40911677)

But all the police have to do is say someone gave them an anonymous tip.

Re:Is Wiretapping Legal Now? (0)

Anonymous Coward | about 2 years ago | (#40911449)

I'll leave you a serious response to compensate for the outrageously sarcastic responses people will say here on Slashdot:

Yes.

Government can wiretap without *much* legal ramifications other than needing to give a reason why to the parties that inquire in a court of law. No warrant necessary.

For all those really concerned citizens out there, it definitely means government power has just grown a lot bigger and U.S. Government's surveillance powers are closer to that of the draconian U.K. government's surveillance powers.

God DAMN you BOOOSH!!!! (0)

Anonymous Coward | about 2 years ago | (#40910725)

Oh, wait a minute. He left office almost 4 years ago....

Re:God DAMN you BOOOSH!!!! (5, Insightful)

CanHasDIY (1672858) | about 2 years ago | (#40910821)

Oh, wait a minute. He left office almost 4 years ago....

Doesn't matter - he's the one who made it law, so you're perfectly justified in taking him to task for it.

Just like how anyone blaming Obama for his failure* to not only abolish said unconstitutional laws, but expand upon them, is equally justified.



* failure to us. I'm sure the corporate masters who really run this nation consider it a rousing success.

Re:God DAMN you BOOOSH!!!! (0)

Anonymous Coward | about 2 years ago | (#40911281)

To be fair, the President has almost no power to abolish law after it's been signed.

Of course, he also has no written power to create laws, but everybody of his party in Congress will pretty much do whatever he says, so it should be just as easy to get one out as it should be to make a new one.

Re:God DAMN you BOOOSH!!!! (3, Interesting)

tnk1 (899206) | about 2 years ago | (#40911359)

George Bush didn't make any laws. The President doesn't make laws, he signs them (or vetoes them). He can write Executive Orders, which are sort of like laws derived from powers the Executive was already granted by Congress or the Constitution, but this isn't one of them. The law in question is a bona fide law passed by Congress with a majority vote of both Houses.

Did Bush want the law? Yes. Was he going to get the law if it would have seen most of the Congress people booted out of office next election? Nope.

I'm not saying the voters are ultimately at fault, because the fact is with a government as big as it is these days, and the issues so numerous, what voter can actually find any representative who will see eye to eye with him? Even big topics like this one are only second order (or lower) issues compared to the overriding hot button issues that elections are actually won on. I mean, we have maneuvered the government into a position where we expect it to fix the whole damn economy as well as provide our health care. You'd have to start making a hell of a lot of warrant-less wiretaps to get someone to throw their favorite politician out of office for that.

Re:God DAMN you BOOOSH!!!! (4, Interesting)

Anonymous Coward | about 2 years ago | (#40910885)

Oh, wait a minute. He left office almost 4 years ago....

It's funny you should mention that.

Four years ago, when the President was pushing more Executive power, many were against it. Those people who were against it, were called "UnAmerican" or were accused of wanting to "help the terrorists" or "didn't realize the threats" against our country. Others pointed out the any extra powers that the executive branch will eventually be in the hands of the "other guys" - in this case the Democrats.

No one listened.

People were afraid and there was revenge in the air. John Q. Public was/is more than happy to give the Government more powers because they'll only use it for "good" and NEVER use it against anyone who isn't doing anything "wrong".

As we have seen, power is NEVER given up. The Obama Administration can at anytime give up those extra powers that the previous administration acquired.

They haven't. Nor will they.

And neither will the next Presidential Administration regardless of who gets into office - even if it's Ron Paul.

We as citizens have failed. We are at fault. We let emotion and the desire for revenge cloud our thoughts and we gave away our Freedoms. Sure, we were thrown some bones - like being able to own an assault rifle with big honking magazines increases my freedom - Plah-ease. The government keeps a real close eye on gun purchases. As well as large financial transactions - see OFAC [treasury.gov] - buy a car - even YOU citizen and it's reported to the government (I know it SAYS foreign but it is also used for domestic purchases on EVERYONE. And then there's the government getting information from: ISPs, Cell Phone providers, Medical Information Bureau, VISA, Mastercard, Credit Bureaus, ChoicePoint, Google, etc ... all with just a scary letter. Who needs a Government Database of files on everyone when corporate America does it anyway (scattered bits and pieces but anyone of us here could create our own Stasi SQL script to put it all together) for the sake of Marketing Data?

They're keeping us SAFE after all and if you do nothing wrong, you have nothing to worry about!

Right???

Of course they will not (1)

SuperKendall (25149) | about 2 years ago | (#40911287)

The Obama Administration can at anytime give up those extra powers that the previous administration acquired.

They haven't. Nor will they.

Of course not. Liberals never give up the tools of fascism, they need them too dearly.

Your only chance this round to help at all is to vote with Republicans or other conservatives, whose angle is reduced federal government, and increasing state powers basically with Tea Party candidates). That is the only way to loose the noose (not misspelled).

With a reduced federal government comes reduced funds for mischief, and reduced power over you. It is the ONLY way out apart from violence.

Re:Of course they will not (0)

Anonymous Coward | about 2 years ago | (#40911325)

The solution is to vote for anti-science lunatics?

The world has very serious problems... there will likely be massive food shortages in the not too distant future and the teabaggers are content to let the world burn and wait for the rapture

Re:Of course they will not (0)

Anonymous Coward | about 2 years ago | (#40911509)

Uh... you mean the same Republicans/conservatives that unanimously passed the Patriot Act? Or how Bush signed it into law? The democrats aren't much better; for all the good it does, I'll be voting for third parties.

Re:Of course they will not (1)

Dragonslicer (991472) | about 2 years ago | (#40912699)

Your only chance this round to help at all is to vote with Republicans or other conservatives, whose angle is reduced federal government, and increasing state powers basically with Tea Party candidates). That is the only way to loose the noose (not misspelled).

With a reduced federal government comes reduced funds for mischief, and reduced power over you. It is the ONLY way out apart from violence.

Sadly, many people will not realize that this is sarcasm.

Re:Of course they will not (1)

docmordin (2654319) | about 2 years ago | (#40912783)

Of course not. Liberals never give up the tools of fascism, they need them too dearly.

Yes, clearly [classical] liberals need those tools in order to realize limited government, constitutionalism, rule of law, due process, and liberties including free markets and freedom of religion, speech, press, and assembly.

The following is taken from R. Hudelson, Modern Political Philosophy. M.E. Sharpe: Armonk, NY, USA, 1999:

By the middle of the nineteenth century, a coherent vision of how society should be organized had taken shape in England, western Europe, and the Americas. This vision is the political ideology of classical liberalism. [...] Central to the classical liberalism of the nineteenth century is a commitment to the liberty of individual citizens. Freedom of religion, freedom of speech, freedom of the press, and freedom of assembly [are] core components, as [is] the underlying conception of the proper role of just government as the protection of the liberties of individual citizens. Also central to classical liberalism was a commitment to a system of free markets as the best way to organize economic life.

[...] Classical liberalism draws on the economic science of Adam Smith, the psychological insight into the importance of individual liberty to human beings, and the ethical theories of natural law and utilitarianism. While, at their most abstract level, utilitarianism and natural law disagree profoundly about what makes something morally right or wrong, when combined with the convictions about the truth of Smith's economics and the psychology of human liberty, both theories agree in their endorsement of free markets and limited government. By the middle of the nineteenth century, convinced by the utilitarian critique of the idea of natural law, most philosophers had embraced the utilitarian philosophy. Nonetheless, being also convinced by Smith and Mill of the conduciveness to human happiness and the maximal individual liberty, these same philosophers could warmly endorse the political principles championed by the natural-law theorists of the American and French Revolutions. [...] As the century drew to a close, most classical liberals had also [...] followed Bentham and Mill into accepting the principle of democracy as well. Only governments elected by universal or near-universal suffrage could reasonably be expected to refrain from violating the liberty of their citizens in service to narrow interests [...]

(In case it wasn't obvious, you should not generalize, let alone bandy terms with which you are, seemingly, unfamiliar.)

Re:God DAMN you BOOOSH!!!! (-1)

Anonymous Coward | about 2 years ago | (#40910963)

Yeah. Now we have a black Bush. Just as worthless as his predecessor, but this time a god damn nigger.

It doesn't matter who gets in office; we're only going down, because the fucking assholes (aka politicians) pushing to make changes have nothing but personal agendas to satisfy. They don't give a damn about the country at large including all of its citizens. I wish I wasn't born in this shitty country, really. It's all lip service, no real positive action, only negative action in the name of drugs, terrorism, big media corporations, and those poor, poor fucking children.

And then eventually another natural disaster will happen in some other downright worthless country like Haiti, killing hundreds of niggers, and the fucking U.S. Government will go out of its way to fund, er, waste money on saving their fucking black asses.

Bye-bye civil society control over the exec branch (1)

c0lo (1497653) | about 2 years ago | (#40910727)

Bye-bye civil society keeping in check the govt... nice while it lasted, but it was naive to think it will last forever.

when did we ever have it??? (1)

logicassasin (318009) | about 2 years ago | (#40910747)

at one point have we, the people, been able to keep the government in check? I always thought it was the other way around.

Re:when did we ever have it??? (1)

Anonymous Coward | about 2 years ago | (#40910801)

We did it in 1776. Perhaps one day we can do it again.

Re:when did we ever have it??? (2)

flaming error (1041742) | about 2 years ago | (#40911005)

Not just 1776.

Google "nullification". The principle basically says that if the federal government does something a state finds unconstitutional, the state should tell the feds to go to hell. It's based on the idea that the states are sovereign, and the federal government exists to serve the states in certain matters of common interest which the states enumerated and delegated.

Nullification has been attempted several times. Unsurprisingly, so far the feds have refused to let individual or small groups of states overrule them, and have reserved to themselves the power to decide what they are allowed to do.

The feds have managed to turn the original power structure on it's head. Which is, of course, double-plus good.

Re:when did we ever have it??? (0)

Anonymous Coward | about 2 years ago | (#40911025)

at one point have we, the people, been able to keep the government in check? I always thought it was the other way around.

Use those weapons you're so proud of. That is until the government comes and takes it all away.
Enjoy your prison, citizens.
USA worse than third world banana republics. Mission accomplished.

Re:when did we ever have it??? (1)

SuperKendall (25149) | about 2 years ago | (#40911253)

Use those weapons you're so proud of. That is until the government comes and takes it all away.
Enjoy your prison, citizens.
USA worse than third world banana republics. Mission accomplished.

Oh Well, still beats Europe.

Re:when did we ever have it??? (1)

c0lo (1497653) | about 2 years ago | (#40911437)

Use those weapons you're so proud of. That is until the government comes and takes it all away. Enjoy your prison, citizens. USA worse than third world banana republics. Mission accomplished.

Oh Well, still beats Europe.

Let me quote you something

The past performance is not a guarantee of future returns

Re:when did we ever have it??? (2)

SuperKendall (25149) | about 2 years ago | (#40911585)

The past performance is not a guarantee of future returns

Europe can only PRAY that is true, given what the governments of Europe have done to the people of the past when things went downhill.

I love many of the people of Europe, I've spent some time living there. But lets be realistic here.

so its ok.... (1)

Anonymous Coward | about 2 years ago | (#40910753)

its ok to listen into someone's conversations without any legal permission?

oh well, Nixon, sorry 'bout all that trouble, turns out your warrantless wiretaps on the DNC was ok after all. Whoops, sorry, tell you what, you can have the next presidency to make up for the trouble.

About Judge McKeown (1)

Vinegar Joe (998110) | about 2 years ago | (#40910793)

She was a White House staffer under Jimmy Carter and was appointed to the court by Bill Clinton.

Meaningless Mumbo Jumbo (1)

WillAffleckUW (858324) | about 2 years ago | (#40910823)

The only thing that matters is if the litigant has standing.

Which, technically, limits it to either a US national with dual citizenship with a country that has an international data treaty with the US or a member of Congress, either House or Senate.

The Administration can't sue itself, of course, either current or former.

The only other person would be a named person that the Supreme Court had already ruled was intercepted without a warrant, and said person would have to be a US citizen.

Fine. Kill the fucks then. (0)

Anonymous Coward | about 2 years ago | (#40910833)

Open season on the gov't. Snipe them in their fucking corrupt heads.

Really bad idea (0)

SuperKendall (25149) | about 2 years ago | (#40911313)

Your idea is a really bad idea. Violence against the government will only result in more clamping down on your freedoms, indeed some have hypothesized that the government will take exactly those actions in a false-flag movement to try and abolish the right of the people to be armed.

The only way out of this is to fight back through the ballot box. There's still plenty of time and ability to reverse these things, with the right people in office.

Vote for Tea Party candidates, help them however you are able. Only candidates that fight to reduce the size of government and the degree of control it has over you can help eventually curb abuses like this.

Re:Really bad idea (1)

Tokolosh (1256448) | about 2 years ago | (#40911649)

Vote for Tea Party candidates...that fight to reduce the size of government and the degree of control it has over you

Oh that this were true! Show me a tea party candidate who does not oppose gay marriage.

Really Really bad idea! (1)

bussdriver (620565) | about 2 years ago | (#40912555)

The old Tea Party people are not so bad, I know a few. The new Tea Baggers are either astro turf or hoards of crazy morons who give the sex act a bad name.

Notice the Tea Baggers are all about destroying anything useful and proven while not touching nearly any worthwhile issue - all while saying they want to reduce government! As if privatizing social security would be better (it wasn't and that is why it was created, duh!)

The old group picked their name and had a big issue with how our politicians do not represent us -- something in common with the occupy movement -- both groups faced attempts to have their image stolen by establishment political forces and the Tea Party lost theirs; occupy has not. (yet, but I don't think they will.)

I want police, fire, libraries, free schooling, roads, highways, social security, public unemployment insurance, NASA, national labratories (before "reforms",) public health insurance (medicare is as good as we can get so far). Democracy is supposed to let the majority collaborate to create universal services many of which provide infrastructure necessary for a successful modern economy... The Tea Baggers are too stupid (or corrupt) to see the differences between Social Security and the police state - they'll kill civil society in response to the creation of Big Brother-- effectively doing half the job of for despots!!

The Wild West Frontier SUCKED which is why it all became civilized with huge majorities in support

Wow, is this scary (5, Insightful)

jeko (179919) | about 2 years ago | (#40910857)

For decades we have held that phone calls are private communications that require a warrant to intercept per the 4th Amendment. The Federal Government isn't arguing that they haven't violated the 4th. They're arguing that they're immune from any legal attempts to hold them accountable for violating the 4th.

That's terrifying. It's so bad it makes me think I've wandered into tin foil hat territory, until I read the article: [wired.com]

The San Francisco-based appeals court ruled that when Congress wrote the law regulating eavesdropping on Americans and spies, it never waived sovereign immunity in the section prohibiting targeting Americans without warrants. That means Congress did not allow for aggrieved Americans to sue the government, even if their constitutional rights were violated by the United States breaching its own wiretapping laws.

That's Terry Gilliam "Brazil" logic, right there. The government is literally arguing they're violating the 4th Amendment, but that no one has the authority to hold them accountable. Literally, that the King is above the law. This ruling is so bad that not only does it violate the Bill of Rights, it violates the Magna Carta.

Re:Wow, is this scary (-1)

Anonymous Coward | about 2 years ago | (#40910973)

Magna Carta has no legal force in the United States, particularly since we've never had a monarch.

That "Whooshing" sound you hear.... (1)

jeko (179919) | about 2 years ago | (#40911069)

Tongue in Cheek [wikipedia.org]

Re:Wow, is this scary (2)

zbobet2012 (1025836) | about 2 years ago | (#40911089)

The point of that statement wasn't that it literally violates the magna carta, but that it is such an irrational state of being our original culture outlawed it in 1215 .

Re:Wow, is this scary (1)

lewiscr (3314) | about 2 years ago | (#40911391)

That's not entirely true. The US's laws are based on the English Legal system, and include precedents set in England before the US seceded.

From Wikipedia [wikipedia.org]

The actual substance of English law was formally "received" into the United States in several ways. First, all U.S. states except Louisiana have enacted "reception statutes" which generally state that the common law of England (particularly judge-made law) is the law of the state to the extent that it is not repugnant to domestic law or indigenous conditions.[20] Some reception statutes impose a specific cutoff date for reception, such as the date of a colony's founding, while others are deliberately vague.[21] Thus, contemporary U.S. courts often cite pre-Revolution cases when discussing the evolution of an ancient judge-made common law principle into its modern form,[21] such as the heightened duty of care traditionally imposed upon common carriers.[22]

I interpret that to mean that the Magna Carta itself is not US law, but the judical decisions that resulted from the document are. But then, I don't even qualify as an armchair lawyer, so consult your own legal representative before oppressing the serfs.

Re:Wow, is this scary (0)

Anonymous Coward | about 2 years ago | (#40912687)

There are two possible interpretations for the legitimacy of the legal system. One is that the American revolution created a new sovereign country de novo, from whole cloth. The other is that America sort of split off from England, and the only difference was that there was a new sovereign (13, actually).

At the time of the revolution and still today, there is disagreement which is the better perspective. Yes, every (or almost every) state passed reception statutes which formally adopted England law. But if you read the history, many legislators admitted that they only did this as a belt & suspenders approach. It was sufficient to legitimize the common law by adoption through statute, but not necessarily necessary.

It would be a valid and defensible position to say that the Magna Carta is the actual law in the United States. But it be mostly an intellectual pursuit, because in establishing that fact there'd be nothing concrete to come about. Our subsequent constitutions and legislative law have easily subsumed every possible issue the Magna Carta concerned.

Re:Wow, is this scary (1)

Logic and Reason (952833) | about 2 years ago | (#40912183)

Literally, that the King is above the law.

So is he standing on it, or flying over it? Or perhaps he's using it as toilet paper?

Re:Wow, is this scary (1)

Anonymous Coward | about 2 years ago | (#40912559)

The ruling is NOT novel. This has been the established law for over 200 years. This is only news not because of the ruling, but because of how far the attorneys actually made it in litigation before being slapped down.

Sadly, the only recourse anybody has ever had for violations of the 4th Amendment, either now or in 1800, has either been nominal damages for trespass, or exclusion of the evidence from trial.

Just because something is in the constitution doesn't mean you automatically have a right to money damages, or that the person is subject to criminal punishment. In fact, for almost every constitutional rule, the only constitutional remedy (absent a legislative law) is the court refusing to recognize the fruits of the illegality in court, since ultimately the only place a court truly wields power is within the walls of its actual court room.

There's no magical fairy that goes around, slapping down constitutional law breakers. Courts have extreme, god likes powers when it comes to injunctions, but those are used in extraordinary circumstances, and almost never prospectively. In fact the only time a federal court has prospectively used its injunctive power to prevent constitutional violations was in Brown v. Board of Education. And that's about to end, because Chief Justice Roberts has explicitly stated that he wants to end that and similar federal practices which arose out of the civil rights movement.

Logical, cogent and horrific (3, Insightful)

jeko (179919) | about 2 years ago | (#40913065)

In fact the only time a federal court has prospectively used its injunctive power to prevent constitutional violations was in Brown v. Board of Education. And that's about to end, because Chief Justice Roberts has explicitly stated that he wants to end that and similar federal practices which arose out of the civil rights movement.

You're arguing that we have the Bill of Rights, but no one has the authority to enforce them, which for all practical purposes means we have no Bill of Rights.

Man, I don't want to go all ITG here, but seriously, too many members of my family have pledged to defend the Constitution from all enemies foreign and domestic to ever allow that to stand. Do you honestly believe Patrick Henry or Thomas Jefferson would agree with your stance, that we fought a Revolution for rights and liberties which don't exist in the application?

Again, I'm loathe to sound like some Tea Party nut, but we seem to have arrived at a Constitutional Crisis with an Executive branch that is on a power-mad three-day-drunk. At the local level, we have police departments claiming that merely documenting their activities is a criminal offense. We have the TSA telling a Federal Court that they don't have to do anything they don't wanna do. We have the DOJ telling another Federal Court they don't have to respect the 4th Amendment and "You're not the Boss of me!" We have a president who claims the right to order the execution of any American citizen without trial.

Clinton, Bush, Obama -- it doesn't seem to matter WHO holds the office, it's the office itself that's out of control. Personally, I think the writing's been on the wall since we let Nixon escape a jail term.

It is long, long past time we pull the Executive back into balance.

Hmm (1)

lightknight (213164) | about 2 years ago | (#40910905)

And another chance to reverse a terrible decision on the part of the Legislature denied.

Re:Hmm (0)

Anonymous Coward | about 2 years ago | (#40911039)

The judiciary doesn't have that authority. They only get to explain the legislature's terrible decisions, not modify them.

Re:Hmm (1)

The Master Control P (655590) | about 2 years ago | (#40911199)

Sure they can modify them: By declaring them unconstitutional and therefore null and void.

[sovereign immunity] can only be waived explicitly (2)

Culture20 (968837) | about 2 years ago | (#40910915)

How explicit does the government have to be? R? NC17? XXX?

They should be able to warrantless wiretap (-1)

Anonymous Coward | about 2 years ago | (#40910943)

Lets be honest here. If youre not doing bad shit then you have nothing to worry about.

You can bitch about freedom, government being nazis and all that other "AMERIKAH!!!!!" crap but when it gets right down to it it wont matter to you or anyone else that isnt a bad person doing bad things. What do I care if they listen in to me talk to my girlfriend or best friend or my grandma? I dont because A) They wont waste time listening to my grandma tell me stories of when I was a baby. B) If they do Ill never know it or care because it wont effect me.

So get off your high horses and try to live in reality instead of just wanting an excuse to bitch about the government. Sure they cock a lot of stuff up but this one thing that wont matter a single bit to 96% of americans. You cant complain the government doesnt do things to protect us and then complain when they do.

Re:They should be able to warrantless wiretap (1)

Kazoo the Clown (644526) | about 2 years ago | (#40911017)

By this logic, it should be OK for a Democratic administration to eavesdrop on Republican campaign planning conversations and vice versa, since unless they're doing "bad $#!t", they have nothing to hide...

Re:They should be able to warrantless wiretap (0)

Anonymous Coward | about 2 years ago | (#40911053)

Kill Yourself.

Re:They should be able to warrantless wiretap (0)

Anonymous Coward | about 2 years ago | (#40911101)

Lets just wiretap the webcam on your iPad as you are in the john doing "gawd knows what." Then if you ever get out of line use those photos to blackmail your mouth shut you dirty xyz! No worries, you haven't don't anything wrong... yet.

Re:They should be able to warrantless wiretap (0)

Anonymous Coward | about 2 years ago | (#40911169)

Obama's campaign manager posts on Slashdot?

Re:They should be able to warrantless wiretap (1)

slippyblade (962288) | about 2 years ago | (#40911331)

This... This is possibly one of the worst things I've ever read. There is a reason this was posted as AC, because he'd have gotten modded into oblivion otherwise. We stand up for ALL freedoms, regardless of if we use them or not because as soon as one freedom is sacrificed it becomes an excuse to lose another, and another. We are seeing that every single day.

If you honestly believe what you just posted, I can only have pity on you. Your excuse was a favorite line of the Gestapo during WWII.

Re:They should be able to warrantless wiretap (0)

Anonymous Coward | about 2 years ago | (#40911379)

I'd post a cogent argument, but you wouldn't know an intelligent thought if you saw one. So let me put it in words you'll understand:

Fuck. You. You deserve all the tyranny you get, plus repeated kicks to the junk.

Re:They should be able to warrantless wiretap (1)

The Master Control P (655590) | about 2 years ago | (#40911925)

I couldn't decide how to respond so I'm putting them all in one post.

Courtroom version: Do you commit any form of financial fraud through your banking accounts, AC? Do you... engage in any form of illicit sexual behavior in your bedroom? Do you use your office to engage in graft, fraud, or organized crime? Do you engage in criminal behavior using your automobile?

Categorically no? Well then, you're just a stand-up all around good guy aren't you? So, what are the details I need to access your banking account? ... Oh, well when can I stop by to plant a camera in your bedroom, a recorder on your phone lines and a GPS tracker on your car?

I can't? So may I take that your response to my request is to go fuck myself? Would you say that any reasonable person would answer otherwise?

But how can this be? You've just assured us that if we're doing nothing wrong we have nothing to hide! And surely if you have no problem with secret and completely unaccountable government agencies monitoring you, you can't possibly object to just little old me helping out?

Communist version: <Fake Slavic Accent>Yes, Comrade, we all know that if you are not a Bourgeois Wrecker conspiring to sabotage the progress of the glorious Workers of the RSFSR, then you have nothing to fear from the OGPU or the NKVD! Only those who they know are guilty are taken away to the work camps to repay their debt to our glorious new Soviet society that Comrade Stalin is building. </Fake Slavic Accent>

Star Trek version:

Sisko: What are the charges against Chief O'Brien?
Archon Makbar: They will be announced when the trial begins, as is customary in Cardassian Jurisprudence.
Keiko: How can we prepare if we don't know the charges?
Archon Makbar: Mrs O'Brien, l take it?
Keiko: Yes.
Archon Makbar: There's nothing to prepare. Your husband's guilty verdict has already been determined. The trial will reveal how this guilt was proven by the most efficient criminal investigation system in the quadrant. You may, if you desire, attend this trial, which begins in two days' time.
...
O'Brien: What am l being charged with?
Kovat: No need to worry about that at this point.
O'Brien: This is insane!
Kovat: Whatever you've done, whatever the charges against you, none of that really matters in the long run.
O'Brien: What does matter?
Kovat: This trial is to demonstrate the futility of behaviour contrary to good order. Everyone will find it most uplifting.
O'Brien: Not everyone.
Kovat: Justice will be done. Our lives will be reaffirmed, safe and secure. Here on Cardassia, all crimes are solved, all criminals are punished, all endings are happy. Even our poorest subjects can walk the streets in the dead of night in perfect safety. You're only one man, but your conviction will be a salutary experience for millions. Now then... The trial opens tomorrow. Do you have any questions, anything you want to say?
...
Gul Evek: According to reliable sources, the Maquis arranged the theft.
Odo: l object!
Kovat: Madam archon, please!
Archon Makbar: l thought we went over this yesterday. What is it now? Gul Evek has tied the Maquis to this plot by quoting reliable sources.
Odo: l think we deserve to know who these reliable sources are.
Archon Makbar: Can you provide any details?
Gul Evek: That information cannot be revealed without risk to national security.
Archon Makbar: That's acceptable.
Odo: Might we know how Gul Evek learned the warheads were in the runabout?
Gul Evek: Of course. We learned about them from reliable sources.
Archon Makbar: Are you satisfied, nestor?
Odo: Madam archon...
Archon Makbar: Enough! This is already the longest trial in the history of Cardassia. Let's try to speed things up, shall we?

American Patriot version: Go back to Nazi Germany or Soviet Russia, you bootlicking fascist piece of shit. You don't deserve to live in the land of the free.

No shit (1)

Anonymous Coward | about 2 years ago | (#40911019)

What? The government covered the government's ass?

Ahoy Despotism? (4, Interesting)

udoschuermann (158146) | about 2 years ago | (#40911125)

Seems to me that when the government can violate the law with impunity, it is aiming for despotism. The law of the land is respected only so long as everybody (the government included) is held accountable by it equally.

and the enemy is (4, Interesting)

ranpel (1255408) | about 2 years ago | (#40911133)

I hesitate to type this but after reading TFA I could only conclude that Congress is, in fact, the enemy. Those responsible for passing the applicable laws should, in my mind, be tried for treason. That or show us all (that is - all of us) the truth about all these plots and evil little plans that threatened to take off half the eastern seaboard. SHOW ME! Cunts.

That we're allowed to (nay, made to) fear and to react to that which we can not see is no longer acceptable. Not. Acceptable.
I. Do. Not. Accept.

Re:and the enemy is (1)

flaming error (1041742) | about 2 years ago | (#40911273)

Yeah, well who elects Congress?

A1: Their corporate sponsors, Ergo, global financial interests are the enemy.

A2: The People. Ergo, we are our own enemy.

Re:and the enemy is (1)

Mitreya (579078) | about 2 years ago | (#40911283)

conclude that Congress is, in fact, the enemy.

I am not entirely sure why you would conclude that. I'd blame the court here
IANAL, but I think I would have heard that every law has to have an extra note that says "oh, and government is not immune to this law". And if Congress forgot to add that note - too bad, better luck next time.
Maybe the SCOTUS will take this one for review?

Re:and the enemy is (0)

Anonymous Coward | about 2 years ago | (#40911521)

Those responsible for passing the applicable laws should, in my mind, be tried for treason

Very well then, so get on with it. There are a number of ways to do so without just becoming an angry mob. For example, rally at your state capital and petition the legislature to pass a law to the effect that if congressman so-and-so returns to the state of such-and-such, he is to be arrested immediately and tried for treason against the people of said state. Let the suits in DC chew on that for a while, oh, and the legislature should claim sovereign immunity from the Feds, just to hammer the point home. For that matter, we should all claim sovereign immunity from all authority, and I'd say more; but I'm a busy man. Places to go, windows to smash, stuff to grab.

Organized Crime can't be sued (0)

Anonymous Coward | about 2 years ago | (#40911165)

Organized Crime can't be sued.

Men with guns work the the people who steal 1/3 of your life in taxes.

They wear suits and use funny rituals but it's 100% a scam.

Al Capone ran soup kitchens as part of his PR.

Remember, our labor funds bombing children and torturing people.

Government is evil writ large.

Just a copy... (-1)

Anonymous Coward | about 2 years ago | (#40911191)

The wiretaps didn't take anything, they just made a digital copy of the conversation.

Re:Just a copy... (2)

BMOC (2478408) | about 2 years ago | (#40911223)

I guess that means if I want to torrent movies I have to accept surveillance on my activities?

sorry, trying to find the funny. I know there's one there...

Re:Just a copy... (0)

Anonymous Coward | about 2 years ago | (#40911457)

No attempt at funny. More like hypocrisy that it's okay to copy IP but not okay to copy a conversation.

Re:Just a copy... (1)

king neckbeard (1801738) | about 2 years ago | (#40913079)

Unless you have the intelligence to differentiate between breaking a legal monopoly and an invasion of privacy by the government. The former is an issue of statutory law, while the latter is an issue of constitutional law. The issue has nothing to do with copying. It would be an illegal search if a government agent was tapping your phone just to masturbate to your voice.

Isn't it deprivation of rights under color of law? (3, Insightful)

Libertarian_Geek (691416) | about 2 years ago | (#40911257)

What about deprivation of rights under color of law? They've already confirmed that 4th amendment protected rights were violated. Now, we're just talking about how to hold those responsible accountable for their actions.

18 USC 242 - Deprivation of rights under color of law:

http://www.law.cornell.edu/uscode/text/18/242

Re:Isn't it deprivation of rights under color of l (0)

Anonymous Coward | about 2 years ago | (#40911959)

Two words:

Bivens Action

Re:Isn't it deprivation of rights under color of l (0)

Anonymous Coward | about 2 years ago | (#40913033)

That's a criminal statute. It would require the very same person---that is, the President---who authorized the actions to then begin criminal proceedings against officers who followed the order. Not gonna happen, even if the president who authorized the actions was different from the president who would allow the criminal indictment to go forward.

All aboard slashdotters for Auschwitz (0)

Anonymous Coward | about 2 years ago | (#40911291)

Keep playing the D vs R game, it's almost over now, and I have to say it hasn't been fun.
http://www.davidicke.com/headlines/70557-could-romney-go-to-jail-for-85-billion-fraud

U$A "legal" system. (0)

Anonymous Coward | about 2 years ago | (#40911465)

Riiiiight...

So, what now? (4, Insightful)

clonehappy (655530) | about 2 years ago | (#40911505)

If I have this correctly, here's what the government has just told us:

1. We violated the 4th Amendment to the Constitution.
2. If you would like redress to your grievances, see line 3, below.
3. Fuck You.

Am I still a tinfoil-hatter, now?

Re:So, what now? (1)

cheekyjohnson (1873388) | about 2 years ago | (#40911817)

Am I still a tinfoil-hatter, now?

Yes, because you seem to believe that the individuals who make up the government aren't perfect beings who could never do any wrong.

The Grammar Nazis win! (0)

Anonymous Coward | about 2 years ago | (#40911651)

Grammar Nazis & Government 1 - American Public & Justice System 0

=P

Bivens Actions (1)

Anonymous Coward | about 2 years ago | (#40911921)

All hope is not lost:

Bivens v. Six Unknown Named Agents 403 U.S. 388 (1971) recognizes a cause of action for agents of the federal government for violations of Constitutional rights.

I.E. while the government can't be sued, if a constitutional violation has occurred, the victims can sue the shit out of the government officials who authorized and carried out the violation.

Somone please explain sovereign immunity (1)

MobyDisk (75490) | about 2 years ago | (#40912893)

Can someone please explain the concept of sovereign immunity? The government is sued all the time, so how does this concept fit in here? And how can the constitution be enforced in light of this?

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