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U.S. Government Moves To Dismiss EFF Case

CowboyNeal posted more than 8 years ago | from the nothing-to-see-here-honest dept.

Privacy 219

iny0urbrain writes "The New York Times reports that the US government has asked a federal judge to dismiss the Electronic Frontier Foundation's civil liberties lawsuit against the AT&T Corporation because 'of a possibility that military and state secrets would otherwise be disclosed.' The statement concludes by saying: 'Finally, because the United States intends to assert the state secrets privilege and file a dispositive motion to dismiss this action, the United States requests that discovery proceedings be deferred until the government's submission has been considered and heard.' You can view the full text of the government's statement of interest (PDF) on the EFF's website." Sorry, hadn't had my coffee yet this morning, and double posted this one. Sadly, the first one is a mere two stories down. It's also still pouring into the submissions bin, so I'm not the only one not yet awake.

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219 comments

two stories earlier.... (-1, Offtopic)

Anonymous Coward | more than 8 years ago | (#15227453)

dupe

dupe! (2, Insightful)

TomRitchford (177931) | more than 8 years ago | (#15227454)

And the original is only two stories below this one...

Re:dupe! (2, Interesting)

novus ordo (843883) | more than 8 years ago | (#15227475)

That's DOJ vs NSA, this is US Government vs EFF silly.

Re:dupe! (1)

v1 (525388) | more than 8 years ago | (#15227496)

Well it could be worse... it could have been the very next story rather than at least letting one story slip in between...

Re:dupe! (2)

bazmail (764941) | more than 8 years ago | (#15227514)

I think a story of this seriousness deserves to be duplicated.

DANGER! DANGER! (-1, Troll)

courtarro (786894) | more than 8 years ago | (#15227455)

Why is this red? It seems like there are many posts worthy of being red.

Re:DANGER! DANGER! (1)

MustardMan (52102) | more than 8 years ago | (#15227458)

Different sections of slashdot have different color schemes. YRO articles are red.

Re:DANGER! DANGER! (1)

courtarro (786894) | more than 8 years ago | (#15227479)

I meant that the front-page header for the article was bright red, as opposed to green like everything else. I think I just loaded the page at the exact time it was posted and I guess I got the subscriber pre-release color, or something. I thought /. was trying to bring extra emphasis to this particular article.

Re:DANGER! DANGER! (1)

courtarro (786894) | more than 8 years ago | (#15227464)

Oops, not red anymore ... I guess I experienced a glitch in the Matrix.

Hipocrits (2, Insightful)

Gyorg_Lavode (520114) | more than 8 years ago | (#15227468)

I honestly believe we are highly hipocritical on this subject. We all watch movies like True Lies where the one guy asks, "get me a wiretap on ...", the other goes "Are you crazy? Thats illegal!!" and he responds by saying "And we do it 20 times a day! Now do it!". We watch 24 where the guy does everything in his power to get the information he wants. Then we find out, "Oh Me Oh My! The NSA really DOES spy! I'm Outraged!". We should honestly pick a position. We should stop glamorizing clandestine observation and instead demonize it, or we should accept the fact that there are some things we just don't want to know about in the intelligence world.

Troll. (4, Insightful)

babbling (952366) | more than 8 years ago | (#15227486)

What a load of rubbish.

Either you're trolling, or you have great difficulty distinguishing between reality and entertainment. Just because something is entertaining does not mean that it is something that is agreed with. These are two completely separate things.

How would you react to the fact that some people watch V for Vendetta, 24, 1984, and True Lies? Would your head explode?

Re:Troll. (2, Insightful)

SillyNickName4me (760022) | more than 8 years ago | (#15227616)

Seeing the point you want to make, it is slightly hilarious that at least some of the examples you mention are in fact parodies on reality with the explicit purpose to make certain aspects of reality clear to the reader/viewer.

Maybe, just maybe it isn't as clear cut as you would like it to be..

Re:Hipocrits (-1, Flamebait)

Anonymous Coward | more than 8 years ago | (#15227487)

Two questions:

i) Who's this 'we' you mention?
ii) How should hipocrites be spelt?

Re:Hipocrits (-1, Troll)

Anonymous Coward | more than 8 years ago | (#15227494)

Oh my... what stupid logic. If you can't separate fact from fiction, you need to shut off your tv set and pick up a book.

Re:Hipocrits (1)

cheese-cube (910830) | more than 8 years ago | (#15227531)

My favourite line in True Lies was "Go home dipshit".

Re:Hipocrits (5, Funny)

MustardMan (52102) | more than 8 years ago | (#15227538)

Man, you're totally right. All this time, I've been watching tv shows where they do stuff that I wouldn't do in real life... I'm such a hypocrite. I'm going to throw away my Office Space DVD, because setting your employer's building on fire is just WRONG, and I should never glorify such actions by supporting such an obviously evil work of fucking fiction. Thank you for opening my eyes.

Re:Hipocrits (3, Insightful)

PatrickThomson (712694) | more than 8 years ago | (#15227600)

The problem is shows that have a message. Don't lie, don't cheat, don't steal, and it's ok to fuck warrants because the other guy is guilty. I don't think I've ever seen a law enforcement show out of the USA where violating due process lead to innocents being screwed over but the reality is it happens all the time (weasel words, I don't know for sure but I'm guessing it's >0).

The point is these shows are ingraining "Don't restrict us, after all we only go after the guilty ones" into the mind of the viewing public.

Re:Hipocrits (1)

mpe (36238) | more than 8 years ago | (#15227741)

I don't think I've ever seen a law enforcement show out of the USA where violating due process lead to innocents being screwed over but the reality is it happens all the time (weasel words, I don't know for sure but I'm guessing it's >0).

Most often in drama it's clearly indicated to the audience that the "criminals" are guilty.

Re:Hipocrits (1)

Cylix (55374) | more than 8 years ago | (#15227649)

Burn the mother #$%@#$@# down!

Re:Hipocrits (1)

Gyorg_Lavode (520114) | more than 8 years ago | (#15227770)

The glamorization though is not necessarily soley in entertainment. People like going to bed thinking there are shadowy people who are working in a non-official manner to keep us safe. Certainly people want to be james bond, or at least know his counterpart is out there. The problem is that they don't want to have that work impenge on their personal privacy. Thats a delicate line to draw and is probably simply a matter of how well a spy organization can hide it's actions.

Re:Hipocrits (1)

Guppy06 (410832) | more than 8 years ago | (#15227566)

Yeah, except I never made a movie and I haven't even seen 24 (and don't plan on starting now). So I'm not a part of your "we."

Re:Hipocrits (1, Interesting)

Anonymous Coward | more than 8 years ago | (#15227679)

I've been wondering about 24, actually. It seems to me that so far it's been the kind of programme that the idiots who think things like illegal wiretaps and torture are appropriate and useful can cheer on. But in the last series/season/day, an innocent man was tortured, and the same thing happens in the series/season/day currently being shown. Furthermore, the distrust of the executive office is growing and growing - obviously.

I can think of three plausible possibilities for this:

  1. The people responsible for the storylines have been replaced.
  2. The people responsible for the storylines are realising abuse of power is dumb.
  3. The people responsible for the storylines deliberately set out to get the idiots to worship the hero, and then show how that even for the hero with the best of intentions can fuck up and hurt innocent people.

Anyway, it seems to me like programmes like you describe are actually harmful. When the average right-winger hears about wiretaps and torture, he's thinking of race-against-the-clock, blaco-and-white, completely unlikely Hollywood scenarios, which is why he's in favour of them. I suspect if he hadn't seen such trumped-up entertainment, he might have a more realistic idea of where these might be used, and be less enthusiastic for them.

Re:Hipocrits (-1, Flamebait)

Luscious868 (679143) | more than 8 years ago | (#15228228)

Liberal tool ....

Re:Hipocrits (1)

houghi (78078) | more than 8 years ago | (#15227746)

or we should accept the fact that there are some things we just don't want to know about in the intelligence world.

Well, the whole point is that we do want to know.

Then there is a differnece between fact and fiction. Watch Galaxy Quest [imdb.com] . That is an exelent documentary about the difference of fact and fiction.

Re:Hipocrits (1)

suv4x4 (956391) | more than 8 years ago | (#15227826)

We watch 24 where the guy does everything in his power to get the information he wants. Then we find out, "Oh Me Oh My! The NSA really DOES spy! I'm Outraged!". We should honestly pick a position.

Yea, how the 'ell dare we watch movies & not want NSA to spy on us? Nonsense!

Re:Hipocrits (1)

m50d (797211) | more than 8 years ago | (#15227869)

We all watch movies like True Lies where the one guy asks, "get me a wiretap on ...", the other goes "Are you crazy? Thats illegal!!" and he responds by saying "And we do it 20 times a day! Now do it!". We watch 24 where the guy does everything in his power to get the information he wants.

Nope. You're mixing us up with the general public here. I just watch Enemy of the State.

Re:Hipocrits (1)

Ajmuller (88594) | more than 8 years ago | (#15227880)

There are a few differences here. In 24, we are talking about a short-term situations, terrorists are going to (detonate nuclear weapon|release deadly (nerve gas|virus)). I really would not object to what needs to be done to defend against a clear and present danger. What I do object to is this program of blanket survaliance.
In addition, the most important thing for me is quite simple. I trust Jack Bauer. I would trust Jack Bauer with my life. I don't trust Bush. I wouldn't trust this idiot to hold a cup of coffee without spilling it.
I believe that when Jack Bauer tortures someone, or Jack Bauer wiretaps a phone without due process he does it because he has no other alternative. I believe that when this president tortures people, or orders illegal wiretaps he does it because he can, in a very capricious way with no regard for the law, or for life.

Re:Hipocrit[e]s (1, Insightful)

Anonymous Coward | more than 8 years ago | (#15228136)

1. Learn to spell.

2. Who watches True Lies?

3. Fictional television shows are just that - fictional.

4. The concern is that the surveillance is domestic (i.e., not spying on another country to gain intelligence).

5. Domestic spying is covered by the FISA statutes.

6. The FISA statutes require that the Federal government get a warrant from the FISA court either before or in a reasonable amount of time after the domestic spying.

7. The Federal government did not get a warrant from the FISA court either before or in a reasonable amount of time after the domestic spying.

8. George Bush likes to claim that he does not believe the FISA statutes, specifically enacted after former-President Richard Nixon conducted domestic surveillance without a court warrant (to prevent same), apply to him.

9. Even if FISA statutes are somehow unconstitutional, Bush has failed to challenge them in a court of law.

10. Even if FISA statutes are somehow unconstitutional, the Fourth Amendment to the United States Constitution still applies.

11. George Bush's job is not "[to be] the decider." George Bush's job is (from his oath of office): "to the best of my ability, preserve, protect and defend the Constitution of the United States."

In closing, why would you not want to know what your government is doing? That seems a very silly way to live your life.

Re:Hipocrits (1)

tetabiate (55848) | more than 8 years ago | (#15228169)

following you logic, sir, would mean that everybody should recognize and accept that his(her) partner cheats on him(her) because it is widely known most couple members cheat frequently on each other. So we have to accept tacitly others (specially the government) pissing on our rights because everybody does it.

Woah. (4, Insightful)

babbling (952366) | more than 8 years ago | (#15227469)

How many cases against the government is the EFF running at the moment, and why is the government using the same "national security" excuse for all of them? On the other hand, I guess the "national security" excuse has worked pretty damn well in the past. It worked for billions of dollars spent on a war...

Re:Woah. (2, Interesting)

CaptainFork (865941) | more than 8 years ago | (#15227543)

What's the EFF's proposed solution to terrorism and other national security issues? I'm kind of curious to know, but I couldn't find their policy on this topic on their website.

Re:Woah. (2, Interesting)

SillyNickName4me (760022) | more than 8 years ago | (#15227627)

Making a valid argument as to why a certain thing is wrong in no way requires having a working solution, those are 2 entirely different things.

Your way of reasoning is a well known way to avoid hearing about your own mistakes.

Re:Woah. (2, Interesting)

KarmaMB84 (743001) | more than 8 years ago | (#15227797)

National security is more or less a prerequisite for going to war. Whether it's true or not is another thing.

Was there really any doubt... (2, Interesting)

Parallax Blue (836836) | more than 8 years ago | (#15227476)

... that 'ol Uncle Sam would do this? I'm not sure if this will be effective or not, since the whole operation (probably, I'm no expert) violates a whole lot of privacy laws. Even considering national security issues, it's a stretch.

Hiding from the legislative branch. (0)

Anonymous Coward | more than 8 years ago | (#15227608)

I seem to remember that there are special courts set up for dealing with "secret" subjects. The evidence behind a judgement may remain secret, but the judgement will not. So no I don't buy the "national secret" argument as a way to forstall legal proceedings. Because the legislative branch should always be a part of the process, just like the other two are (note that congress can see a lot of these "secrets". Why not the legislative?)

Comrads PLEASE!!! (5, Insightful)

bazmail (764941) | more than 8 years ago | (#15227481)

The security of the Motherland outweighs any and all privacy concerns.

--Brought to you by the Republican Proletariat.

whaa (5, Interesting)

tehwebguy (860335) | more than 8 years ago | (#15227489)

didn't nixon claim that the watergate incidents must not be investigated because it was an issue of national security?

where is our deepthroat today, is no one left in government uncorrupted?

Re:whaa (0)

Anonymous Coward | more than 8 years ago | (#15227520)

What do you expect when the war against freedom is being openly conducted and advocated by websites like this? [xrl.us]

Re:whaa (3, Insightful)

Anonymous Coward | more than 8 years ago | (#15227546)

You must be referring to the Republican war against our freedom.

Re:whaa (1)

Autochthonous Lagomo (962003) | more than 8 years ago | (#15228066)

Don't blame the Republicans for this kind of 'The State Rules All' attitude. Before the Republicans started bakig the Big Government pie, the Democrats had already perfected the recipe. It's Nanny-Staters like Hillary Clinton and Tipper Gore who want to push censorship of video games and other media, despite the fact that a) the Constitution prohibits it, and b) the average video gamer is 30 fucking years old. It's just out-of-touch millionaire legislators, regardless of party, who are screwing this country.

Re:whaa (1)

mOdQuArK! (87332) | more than 8 years ago | (#15228270)

Before the Republicans started bakig the Big Government pie, the Democrats had already perfected the recipe.

Uh huh - I think the Republicans are baking that pie "badly" - they seem to have forgotten a couple of ingredients, like not spending more money than the government is taking in, and trying to support programs that help the lower economic classes instead of the upper economic classes (who don't really need the help), and not using the government to enforce their own version of "morality". At least the Democrats pay lip service to that kind of thing (except for a different version of the morality thing).

To be fair, I think that a lot of it is the personal ideology of the Republican Leadership - but to be also fair, the Republican rank & file has been following them like sheep into an abattoir.

Given how poorly the Republican party's ideology has served the country, it would be the best for the country if anyone who has been following that ideology is removed from power for at least a few election cycles, and that we avoid replacing them with anyone who follows that ideology. (I include Democrats who follow that ideology as well.)

Whoever steps in to fill the vacuum might not be any better than the existing leadership, but they'll have to do pretty badly before they could be considered to be worse.

Re:whaa (5, Informative)

grylnsmn (460178) | more than 8 years ago | (#15227574)

There's a difference between a civil case (which is what the EFF case is) and a criminal investigation (which is what Watergate was). States Secrets Privilege [wikipedia.org] applies mostly to civil cases, regardless of whether the government is a party to the case or not.

Re:whaa (1)

rthille (8526) | more than 8 years ago | (#15227787)

where is our deepthroat today...

he lives about 12 miles from me, but he's pretty old now, and I think he's out of the loop...

Today's equivalent is why we know about the NSA wiretapping at all. They're probably dead, or will be soon, or at least at Guantanamo. From what I remember about the Nixon thing, Liddy wanted to have Deepthroat killed...

Re:whaa (0)

Anonymous Coward | more than 8 years ago | (#15228100)

is no one left in government uncorrupted?

How big is the US government today? There you will find your answer.

The more power that exists, the more exploitable the government, and accordingly, the more corruption that exists. The US government is now the biggest, most powerful government in the world, taking in and spending orders of magnitude more than any government in history.

I think your question should be rephrased "how would it not be possible that widespread corruption exists in the US government?"

Your Government Says... (-1, Troll)

Anonymous Coward | more than 8 years ago | (#15227510)

You lose and there is nothing you can do about it.

In your language, that would be;

Total pwnage!!!111 OMFG ROFLMAO!!11!!! LOLzor newb!

Reminder from history (4, Interesting)

HangingChad (677530) | more than 8 years ago | (#15227542)

That the Nazi party in pre-war Germany...at their peak commanded something like 30% of the vote. Until they actually seized power they were an extremist fringe group largely dismissed by the electorate.

I think it's oddly coincidental that, even after everything that's happened, Bush's approval rating still is around...

...30%.

Re:Reminder from history (1)

whathappenedtomonday (581634) | more than 8 years ago | (#15227590)

Until they actually seized power

Actually, they didn't... [wikipedia.org]

Re:Reminder from history (1, Troll)

Beetjebrak (545819) | more than 8 years ago | (#15227740)

Yes they did. They actively sabotaged all efforts to develop and maintain any sort of democracy. This happend by their fraction systematically undermining almost every vote in the House. It was not uncommon for the nazi party to 'blow up' cabinet after cabinet within a timespan of mere weeks. This made a functional democracy impossible. In the end the president and his chancellor had no other option but to rule by decree. 86 year-old and ailing president Von Hindenburg was put under enormous pressure to appoint Hitler as chancellor instead of Von Papen. This pressure consisted of sabotage by the considerable Nazi party fraction in parliament against any and all policies coming from Von Papen. It is very well known that Hindenburg held Hitler ("the corporal" - Hitler had been a lowly lance corporal during WWI while Hindenburg was a field marshal) in very low esteem. Only through active sabotage could Hitler replace Von Papen as chancellor and in effect seize power by using article 48. When Von Hindenburg finally died of old age (he had been unable to perform his duties for a considerable period before his death), Hitler was able to formally unite the positions of chancellor and president within his own person while there should have been an election instead. So technically Hitler didn't grab power but claiming that power was simply given to him wouldn't do justice to history. Leaving Hitler's later acts out of consideration, this sounds very much like the USA elections of 2000 which Gore should have actually won had all votes been properly counted. Bush is where he is because he exploited the system, Hitler got where he wanted to be by exploiting the system. I don't find it surprising that this comparison comes up so often, it's simply obvious..

Re:Reminder from history (1)

routerguy666 (926506) | more than 8 years ago | (#15227857)

You'd have an easier time passing off your personal interpretation of historical events if you could at least use the word 'faction' instead of 'fraction'. Then again you did get modded up, so apparently it makes no difference here where fervor wins out over accuracy.

Re:Reminder from history (4, Informative)

PatrickThomson (712694) | more than 8 years ago | (#15227659)

Not true. The nazi party actually legitimately aquired a majority in the Reichstag, before they burned it down and blamed it on the opposition in order to seize absolute power. He only won 37% of the votes cast (or thereabouts) but the opposing citizens were too divided in opinion.

Re:Reminder from history (1)

Cal Paterson (881180) | more than 8 years ago | (#15228033)

Well, if by "legitimately" you're refering to the thugs they stationed outside voting chambers to beat up and threaten non-nazi voters, then you're correct. I think when the grandparent said "seized" I think he's refering to the massive growth in support because of their coalitions with other parties.

Re:Reminder from history (2, Informative)

hyfe (641811) | more than 8 years ago | (#15228071)

Not true.p> Heh, you can't start a post saying Not True and then proceed to agree. Maybe you're misunderstanding the German politcal system? The nazi party actually legitimately aquired a majority in the Reichstag,

Yes, this is true. However, 'Aquired' as in 'had majority backing' and not 'had the majority of seats themselves'. In other words, a majorty of the Reichstag was content not to 'raise a vote-of-no-confidence'.

In previous news.... (3, Informative)

slashbob22 (918040) | more than 8 years ago | (#15227544)

EFF had asked a Federal Judge to order AT&T to cease and desist their co-operation with the DoJ because 'of a possibility that personal and corporate secrets would otherwise be disclosed.'

Dupe-ing stories good for once (4, Funny)

TheNoxx (412624) | more than 8 years ago | (#15227554)

Normally, I'd quickly join the collective groan upon seeing a story duped, but this is one of those rare cases where it actually comes in handy and adds one more voice trying to get the American public to PAY SOME FUCKING ATTENTION.

Now, if only the NY Times would dupe stories like this. :)

Re:Dupe-ing stories good for once (0)

sbrown123 (229895) | more than 8 years ago | (#15228004)

The mass media is being assaulted with silly stuff like Iran. I would guess this is more of a "look over here while I do this over there" strategy. And people are generally ignorant to the threat this poses since they actually believe this is being used to fight terrorism or child porn.

The NSA program probably IS Constitutional (1, Insightful)

starfire-1 (159960) | more than 8 years ago | (#15227569)

Ok, so I realize that as a litigant, the EFF will have the position that the NSA wiretap program IS illegel, this is shaky on right from the start.

First, the President has rights and responsibilities under Article 2 that gives him broad powers in times of conflict and war. The NSA wiretap (as in the press) is on communications between suspected terrorists/affiliates OVERSEAS and someone in the US. This type survellance was common in WWII and used extensively.

Second, it could very well be that the FISA law itself is the unconstitutional component here. Just because a weak president (Carter) signs FISA in 1978 on the heels of Watergate doesn't mean the a) it is Constitutional and b) that a future president can't take that power back.

Third, although there is no privacy provision in the Constitution (although implied by the fourth ammendmant - search and seizure) even if we are to stipulate one, the affected parties would need to have an expectation of privacy. As the targets of the program are terrorist or their affiliates, no reasonable person could argue that an enemy combatant, using domestic communications of the enemy they wish to harm, would expect that no one would listen. This may be a benefit of a U.S. citizen, but not the enemy.

Re:The NSA program probably IS Constitutional (1)

Secrity (742221) | more than 8 years ago | (#15227653)

Other than the assertions of the current administration, which many (possibly up to 70% of the population of the US according to presidential approval polls) believe has been shown to be untrustworthy, what is your source that backs up your statement: "As the targets of the program are terrorist or their affiliates ..."?

Re:The NSA program probably IS Constitutional (1)

starfire-1 (159960) | more than 8 years ago | (#15227865)

... News reports that state that either endpoint (phone number of cell phone, e.g.) are already on a list of suspected communications and goes active.

The Catch 22 to this is if a suspected line goes active you a) can't figure out who is on the other end until you "listen in" and b) since you don't know both parties (or even specifically one party) that by the time you went to FISA to get a warrant, the communication is over and action by the enemy may have already been taken.

I'm pretty sure that terrorist #1 is not talking to money guy #2 on a cell phone overseas saying "So how about those Yankees. Started out in the cellar, but they're on their way back up." It's far more reasonable to think that they are communicating a tactical directive that by its nature would need to be executed quickly to be effective.

BTW - polls are frequently contrived and weighted. Presidential approval ratings can capture both the opposition party (near 100% opposed) and some in his own party who don't like everything he is doing, e.g. immigration or spending. Same thing with "Right track/Wrong track"

Re:The NSA program probably IS Constitutional (1)

Chowderbags (847952) | more than 8 years ago | (#15228065)

There's already provisions for that. It's a 72 hour retroactive warrant. Perfectly legal, and it creates paperwork so that the government can't abuse it without being accountable for. Is that too hard to do? Tough. No one ever said that democratic republics were easy to secure.

Re:The NSA program probably IS Constitutional (1)

Lord Bitman (95493) | more than 8 years ago | (#15227656)

*cough* *9th ammendment* *cough*

Re:The NSA program probably IS Constitutional (1)

starfire-1 (159960) | more than 8 years ago | (#15227788)

The ninth amendment (Unenumerated Rights) is the very definition of obscurity. I find it amusing that other replies to this thread argue that since this war is not clearly defined and specfically set forth in the Constitution, then it somehow can be classified as a war. Yet here we have the underspecified ninth amendment being held up as the clear reason why we can't listen in on phone converstaions with one end on a cell phone or other device on a watch list.

Apparently, the ninth amendment was seldom referenced in Supreme Court cases until the start of the abortion movement in 1965 when it was used to slowly create the right to privacy that is backbone of Roe v. Wade. (The 'Unenumerated' right to privacy.)

So if we go down this road, just about anything can be a "retained by the people." Perhaps that is why the Supreme Court avoided it for so many years(?)

Re:The NSA program probably IS Constitutional (2, Insightful)

Chowderbags (847952) | more than 8 years ago | (#15228157)

"I go further, and affirm that bills of rights, in the sense and in the extent in which they are contended for, are not only unnecessary in the proposed constitution, but would even be dangerous. They would contain various exceptions to powers which are not granted; and on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do?"
-Alexander Hamilton

It's very discouraging for a government to only check if the rights specificly said are being infringed upon. While the government takes the interstate commerce and "nessecary and proper" clauses and stretches them to infinity, the 9th Ammendment is almost always ignored. Why does it seem like we'll need Constitutional ammendments to limit what the government wasn't ever given the power to do? I'm not saying that we can ever truly go back to a small government in the libertarian sense, but we could at least not have the government slowly chipping away at our abilities to exercise fundamental human rights, like being reasonable sure that a lawful citizen can communicate privately without fear of being randomly tapped.

Re:The NSA program probably IS Constitutional (0)

Anonymous Coward | more than 8 years ago | (#15228212)

"So if we go down this road, just about anything can be a "retained by the people." Perhaps that is why the Supreme Court avoided it for so many years(?)"

Hey DUMBASS!!!! That's the whole point!!

Limited, specifically enumerated powers, not broad, unlimited powers.

It never ceases to amaze me how completely ignorant so many people are of the way the Constitution was made and the attitudes behind its construction.

The NSA program probably IS Constitutional-WWIII (0)

Anonymous Coward | more than 8 years ago | (#15227664)

"First, the President has rights and responsibilities under Article 2 that gives him broad powers in times of conflict and war. The NSA wiretap (as in the press) is on communications between suspected terrorists/affiliates OVERSEAS and someone in the US. This type survellance was common in WWII and used extensively."

You are aware that we have to take the very entitiy under investigation, word that terrorists (and associates) were the only one's caught in the NSA web (keeping in mind the NSA is forbidden from domestic spying)

Are you also aware that we have only declared war against a general idea (terrorism). Unlike WWII which was specific countries. Let me know when congress declares war, then we can start applying WWII principles.

Re:The NSA program probably IS Constitutional-WWII (1)

mpe (36238) | more than 8 years ago | (#15227828)

You are aware that we have to take the very entitiy under investigation, word that terrorists (and associates) were the only one's caught in the NSA web (keeping in mind the NSA is forbidden from domestic spying)

You also only have the words of proven liers that these are the people actually being targeted.

Are you also aware that we have only declared war against a general idea (terrorism).

Not even that. Governments only tend to be interested in prosecuting a minority of terrorists in the first place, most they try to ignore another minority get government support. A general targeting of terrorists (which would be a radical change) would undoubtedly net quite a few anti-abortionists and "animal rights" activists.

Re:The NSA program probably IS Constitutional (3, Insightful)

SillyNickName4me (760022) | more than 8 years ago | (#15227666)

First, the President has rights and responsibilities under Article 2 that gives him broad powers in times of conflict and war.

This assumes a war or conflict that can be ended. If it doesn't then the whole article is rubbish and those powers could just be given to the president in all situations, not just in case of war or conflict.

It is obvious that the current govenrment is doing all it can to define the conflict in such a way that it can never be ended, hence it is clear that this conflict is in fact being used to get around the consitution.

I am not trying to suggest that the current US government would follow any racial policies or such similar to the nazi party in Germany in the 1930s, but they are most definitely trying for the same kind of abuse of the democratic system to gather as much power as they can.

Re:The NSA program probably IS Constitutional (1)

starfire-1 (159960) | more than 8 years ago | (#15227752)

The problem in define this war/conflict is that it is not with a State government and therefore there are fewer "bright lines" that we can use to a) declare the war and b) know when it is over.

However, to sit around, throw up our hands and say "well, this can't be a war because we can't know when it's over." is silly and dangerous. 9/11 happened. Another will happen unless we take this seriously and acknowledge that in 1789 the authors of the Constitution could not have forseen this type of deadly "stateless" enemy.

Re:The NSA program probably IS Constitutional (1)

evilquaker (35963) | more than 8 years ago | (#15227834)

However, to sit around, throw up our hands and say "well, this can't be a war because we can't know when it's over." is silly and dangerous.

Oh, we know when it will be over: right about the same time as the War on Drugs (tm) and "Affirmative" Action... namely, never. What's silly and dangerous is to believe that the "War on Terra" is meant to be "winnable".

Re:The NSA program probably IS Constitutional (1)

SillyNickName4me (760022) | more than 8 years ago | (#15227952)

However, to sit around, throw up our hands and say "well, this can't be a war because we can't know when it's over." is silly and dangerous.

Which isn't what I was suggesting, I was however suggesting that it is NOT the type of war that is talked about by the consitution.

9/11 happened. Another will happen unless we take this seriously and acknowledge that in 1789 the authors of the Constitution could not have forseen this type of deadly "stateless" enemy.

Rubbish. The USA started out itself as a bunch of people forming a 'stateless' enemy of the UK. It contains guarantees so that the people in the USA can have their melitia seperate from their government.

Arguing that the concept was unknown at the time is simply absurd.

Re:The NSA program probably IS Constitutional (1)

starfire-1 (159960) | more than 8 years ago | (#15228107)

Good point! I can't say what they were thinking. Now I'm guilty of assuming. :)

Re:The NSA program probably IS Constitutional (1)

Waffle Iron (339739) | more than 8 years ago | (#15228094)

9/11 happened.

That doesn't mean that we're in a war. 9/11 was a huge crime, but it was not carried out by the military forces of any foreign power. Maybe you could argue that Afghanistan was responsible for the attack, but we already went to war with them and that war is over. They are now simply an occupied country.

There is no war. The current situation is just as it has always been throughout the history of civilization: we live under risk that criminals will carry out terrorist acts.

In comparison to the terrorism risk, each person also happens to live under a much greater risk that they'll die in an automobile accident; however, no president has tried to use that more serious risk as a pretext to suspend the constitution.

Re:The NSA program probably IS Constitutional (1)

LegendLength (231553) | more than 8 years ago | (#15228010)

This assumes a war or conflict that can be ended. If it doesn't then the whole article is rubbish and those powers could just be given to the president in all situations, not just in case of war or conflict.

Well we do have a significant number of troops deployed in a country where tens of Iraqi civilians and US/Iraqi forces are being targetted and killed each day. I would say that, at least, qualifies as a war wouldn't you agree?

If there were no longer troops there then I would agree with you that the president has no right to invoke such measures.

Re:The NSA program probably IS Constitutional (1)

SillyNickName4me (760022) | more than 8 years ago | (#15228035)

Well we do have a significant number of troops deployed in a country where tens of Iraqi civilians and US/Iraqi forces are being targetted and killed each day. I would say that, at least, qualifies as a war wouldn't you agree?

Self proclaimed war, providing an excuse for abuse.
You are right that that is a war, but it is not the 'war' being used initially as a general excuse for spying on US citizens however, the war quoted there is the 'war on terrorism'.

If there were no longer troops there then I would agree with you that the president has no right to invoke such measures.

You can be sure that the current government will find another country to stick its nose into illegally before a full withdraw from Iraq takes place, thereby prolonguing the excuse of 'war.

It is a lesson learned well from the reichstag burning in the 30s.. If you lack an excuse, just create one.

Re:The NSA program probably IS Constitutional (0)

Anonymous Coward | more than 8 years ago | (#15228281)

"It is obvious that the current govenrment is doing all it can to define the conflict in such a way that it can never be ended, hence it is clear that this conflict is in fact being used to get around the consitution."

Funny, the used to call it an illegal government takeover, punishable by death. Why is bush still alive?

Re:The NSA program probably IS Constitutional (4, Insightful)

Scrameustache (459504) | more than 8 years ago | (#15227719)

broad powers in times of conflict and war

And he went ahead and declared war on an abstract concept! We've always been at war with Eurasia, you know.

As the targets of the program are terrorist or their affiliates, no reasonable person could argue

Open source supports terrorism [slashdot.org] .
Copyright infrigement funds terrorism [slashdot.org] .

And most importantly: You can't ask who they're really spying on [slashdot.org] .

Re:The NSA program probably IS Constitutional (1)

yeolcoatl (967780) | more than 8 years ago | (#15227838)

First, the President has rights and responsibilities under Article 2 that gives him broad powers in times of conflict and war.

Last I checked, Congress hadn't declared war on anybody.

For the last time, we are NOT AT WAR.... sigh. (4, Informative)

TheNoxx (412624) | more than 8 years ago | (#15227919)

The "War on Terror" is just a catchphrase, and the actual war, meaning one government's army fighting against the army of an opposing government, on Iraq was over long ago. We have a very large amount of troops deployed for being outside of a war, but that's no different from our "policing action" in a few Asian countries. This is why Bush has tried very hard, and often succeeded, to fabricate a need and provision for special powers, such as creating the Homeland Security department and having them create that bullshit "color coded threat" system, and why the Patriot Act was originally passed: it was supposed to expire, but was then made permanent. The president no longer retains any special war privileges, and aside from the ones granted to him and his cronies through the Patriot Act (which I believe they aren't using this time because they'd validate the claim to an extent that might well warrant many other groups besides the EFF to join in the legal battle, as the court case as it stands has the feds speaking tripledoublespeak (from the filing in TFA):
"When allegations are made about purported classified government activities or relationships, regardless of whether those allegations are accurate, the existence or non-existence of the activity or relationship is potentially a state secret."

Also, there are very clear provisions for privacy in the Constitution, and I believe the Supreme Court already ruled on this at least once: your communications, in whatever form, are your property and you have the right to keep them private. This is why getting a wiretap is (well, was, and kinda still is, though apparently legal justice magically changes depending on which agency/department of the government you work for) so hard to obtain. This is why unauthorized wiretaps are inadmissable in court; the same rule applies to getting a warrant to search your email or whatever you use. The reason why so many people have the miconception that they don't have the right to privacy is because the rights of citizens were greatly eroded under Rehnquist, for if I recall correctly, the Rehnquist court is the reason why police can't search you when you're walking on the street but can search and open any belongings you have once you step inside a vehicle, amongst other and lesser known trespasses and limitations on personal liberties.

Oh, and lastly, FISA is completely constitutional, and very well cemented into the machinery of the federal government, as the FISA court has great authority and works a little too nicely with intelligence agencies (The infamous CARNIVORE was created at the order of the FISA court), so I don't know why Bush exhibited such baffling stupidity by giving an Executive Order to the NSA for the wiretapping (which does break the law, and the only reason there hasn't been an inquiry is because the Republican controlled House and Senate refuse to even consider any sort of legal action) instead of asking the FISA court to issue an order for the wiretapping to the NSA, which probably wouldn've been completely legal... Perhaps because even the oft-bold FISA court isn't that stupid and brazen to so openly violate the Constitution.

Re:The NSA program probably IS Constitutional (1)

mejesster (813444) | more than 8 years ago | (#15228008)

The problem with either side of this argument is simply that WE DO NOT KNOW what the government is doing. What they claim to be doing is "protecting citizens" and listening to the conversations of terrorists, but we have no way of proving that. In fact, some people fear domestic spying against war critics and even political opponents. Sources? Newsweek [msn.com] , The San Francisco Chronicle [sfgate.com] , The New York Times [truthout.org] (not a direct link, but a mirror) and CNN [cnn.com] to start. So tell me, are you feeling a little more nervous yet?

Re:The NSA program probably IS Constitutional (0, Flamebait)

rthille (8526) | more than 8 years ago | (#15228034)

I couldn't find anything in Article 2 [findlaw.com] about special war powers granted to the president. I remember that only the congress can declare war (which hasn't happened against Iraq), and that this bullshit 'war on terror' is really a 'control the population thru terror'.

Re:The NSA program probably IS Constitutional (1)

Beryllium Sphere(tm) (193358) | more than 8 years ago | (#15228121)

>As the targets of the program are terrorist or their affiliates

How do you know? How can you know? How can any of us know?

There is no judicial review, even by a secret court. There are no checks and balances.

The FBI agents following up on NSA reports said they were a waste of time and the FBI director questions the wiretaps's legality [nytimes.com] .

>there is no privacy provision in the Constitution

Doesn't have to be. The Bill of Rights isn't meant as an exhaustive list. That's why there's a Ninth Amendment, to stop people from saying a right doesn't exist because there's no provision for it in the Constitution.

>The NSA wiretap (as in the press) is on communications between suspected terrorists/affiliates OVERSEAS and someone in the US.

OK, so you trust this Administration. I'll skip that debate and ask instead: how will you feel waking up on January 20, 2009, and finding all this power in the hands of Hillary?

Re:The NSA program probably IS Constitutional (1)

necro81 (917438) | more than 8 years ago | (#15228247)

Second, it could very well be that the FISA law itself is the unconstitutional component here. Just because a weak president (Carter) signs FISA in 1978 on the heels of Watergate doesn't mean the a) it is Constitutional and b) that a future president can't take that power back.

One cannot so simply dismiss the FISA law. It is a law on the books, and cannot be dismissed. Just because someone - ESPECIALLY THE PRESIDENT - thinks it is unconstitutional does not give them license to disregard it. The only ones empowered to set aside a law is Congress, who can do so by passing another law, and the Judiciary, by declaring it unconstitutional. It is my opinion, and the opinion of many in Congress and legal scholars, that the president has willfully circumvented the FISA law.

The president argues that Congress set aside FISA by their anti-terrorist-in-Afghanistan resolution, even though the powers in Congress say otherwise. They wrote the law, they specifically left out a portion that would have explicity given the president these powers, yet the president goes ahead anyway. As for constitutional arguments, the president can make them, but his office, nor anyone who works for him, is empowered to make those arguments the official law of the land - only the Supreme Court can. The executive branch is not the arbiter of constitutionality in our government.

So, I say, let's air this issue out like yesterday's laundry. There are enough constitutional questions attached to this issue that it MUST be heard out in court at the highest level.

As the targets of the program are terrorist or their affiliates, no reasonable person could argue that an enemy combatant, using domestic communications of the enemy they wish to harm, would expect that no one would listen.

So you say, so the President says, so the Attorney General says. However, no court has ever had a chance to examine who these people are, and what probable cause the NSA may have for investigating them. If the president is able to wiretap people with no judicial or congressional oversight, how do we know he is not abusing this power and investigating us? Maybe you trust G.W. that far, but I trust NO president that far. The framers of the Constitution didn't trust the presidency that far, either.

Re:The NSA program probably IS Constitutional (1)

thatguywhoiam (524290) | more than 8 years ago | (#15228273)

Third, although there is no privacy provision in the Constitution

Ah, yes. The old 'there are only negative rights' argument.

No privacy, eh? Tell you what: I'm coming over. And I'm not gonna knock.

Get Off Your Keyboards ! (1, Informative)

Anonymous Coward | more than 8 years ago | (#15227572)

Why isn't anyone connecting the dots? This is no time for partisan pleasantries. Americans are in the midst of the biggest gov/corp conspiracy to undermine civil rights, control communications and profiteering scheme in history. START PROTESTING ALREADY !!!

Sad but true (1, Funny)

Anonymous Coward | more than 8 years ago | (#15227587)

It's horrific to see the US sleepwalking into a dictatorship. I'm going to deal with this in true slashdot fashion, somebody post some pr0n links - it's fapp time.

guilty? (2, Insightful)

zboy (685758) | more than 8 years ago | (#15227597)

Would the government stepping in for a case like this imply that AT&T is guilty?

Re:guilty? (2, Insightful)

ScrewMaster (602015) | more than 8 years ago | (#15227692)

I'd say it implies that the government is guilty.

Spying on people simply works better.... (3, Insightful)

3seas (184403) | more than 8 years ago | (#15227648)

.. when those being spied upon don't know it.

Now everyone bend over and shoot a moon....

Re:Spying on people simply works better.... (1)

Beryllium Sphere(tm) (193358) | more than 8 years ago | (#15228173)

The issue here, of course, is whether a judge somewhere will know about it. Judicial review has proven to be a good system for hundreds of years.

I'll say it again (1)

Anonymous Coward | more than 8 years ago | (#15227850)

Get these GOD DAMN REPUBLICANS **OUT** of OUR government! I am SO TIRED of this sh!t.

America if you aren't scared at what is going on, you are already a lost cause. To "conservatives" (a.k.a the ones who ruined it all): don't think this terror of a government won't eventually come for you, too. It will, and much sooner than you think. And by then there will be nobody left to save you.

USA = Nazi Germany
USA = Evil Empire
USA = Great Satan

The USA is no longer what it once was. SO DOWN WITH THE USA!

Andrew Tannenbaum?! (1)

GregAllen (178208) | more than 8 years ago | (#15227912)

I did a double-take when I saw Andrew Tannenbaum on the list of legal representatives. Closer inspection showed that he is a Trial Attorney for the US DOJ -- not the same (very) geek-famous Andrew Tannenbaum [cs.vu.nl] . I need some of CowboyNeal's coffee. :)

Why not reparent this story? (0, Offtopic)

blair1q (305137) | more than 8 years ago | (#15227914)

I've never looked in the code for slash, but why is it impossible to reparent this story as a comment under the original?

Re:Why not reparent this story? (1)

ndvaughan (576319) | more than 8 years ago | (#15228205)

Or perhaps allow users to "bury" it? Seems to work for a certain other tech-news site ;)

Sure why not (0, Troll)

nurb432 (527695) | more than 8 years ago | (#15227917)

Just ban anything anti-government since it might lead to a 'state secret issue'.

We can be as good at it as the russians were, even better.

Question: (4, Interesting)

Greyfox (87712) | more than 8 years ago | (#15227968)

And this is a serious question, I really don't know the answer to this and no one seems to be addressing or asking it.

Can an illegal act be a state secret in this country? Could, lets say hypothetically, a Congressman or a high ranking official oh, I don't know... kill a hobo. Not because the hobo was a threat to the state mind you, but just because he didn't like hobos. Could he then use the power of his position to make his bumping off of the hobo confidential and be immune from any prosecution on the act?

If the answer is yes then the Judge should dismiss immediately and there would be no accountability for their actions for anyone in the government well enough connected to get something declared a secret. It seems to me that if this were the case, Abramoff and company would have had their shenanagans declared a state secret and still be free. But maybe they just weren't well connected enough. Maybe Dick Cheney could kill a hobo, suck all his blood out of him and eat his heart in some strange ritual and have that information sealed so that he could be forever immune to prosecution.

If on the other hand an illegal act can not be declared a state secret, I think that for this motion to go forward you'd have to have a hearing on whether the wiretapping was legal in the first place. I would hope that this is the case because I want my government officials to be accountable for the things that they do.

Unfortunately I'm not a lawyer and you almost never seem cases like this where the Government's a defendant. It would seem to make sense that illegal actions could not be confidential but this area of the law does seem to be pretty vaguely defined so I wouldn't be surprised if it actually goes the other way.

Re:Question: (0, Flamebait)

ninjagin (631183) | more than 8 years ago | (#15228081)

The answer is yes.

The CIA is built for exactly that purpose. I saw an interview with the deputy dir under the presidency of GHWB where he said exactly that.

Re:Question: (3, Informative)

huge (52607) | more than 8 years ago | (#15228191)

Could he then use the power of his position to make his bumping off of the hobo confidential and be immune from any prosecution on the act?
No, you cannot declare something classified to cover your illegal acts. Section 1.7 of Executive order 12958 [wikisource.org] prevents classification to conceal violations of law.

Re:Question: (2, Insightful)

mOdQuArK! (87332) | more than 8 years ago | (#15228300)

I sincerely doubt that anything that can be modified by the President (e.g., Executive Orders) will place any sort of constraint on the behavior of this President.

Re:Question: (1)

the_denman (800425) | more than 8 years ago | (#15228272)

I think the difference is that that is a criminal case and this one if a civil one...

In other news... (-1, Troll)

Anonymous Coward | more than 8 years ago | (#15228046)

In other news, Slashdot editors, eager to post any story that makes the Bush administration look bad, didn't bother to check and see if it had already been posted. Slashdot editors refused to comment on whether this constitutes evidence of a liberal slant amongst those who select what gets posted and what doesn't, citing, "we believe the documents to be fake but authentic," and claimed no bias. Oh, wait, that's the CBS defense, isn't it? Johnny Cochrane, author of the famous "Chewbacca defense," could not be reached for comment.

Something worthwhile (1)

OYAHHH (322809) | more than 8 years ago | (#15228297)

Given,

I just spent 1.5 hours on a second line trying to get the boneheads at ATT to fix my blooming main land-line I'd much rather the EFF sue to get ATT to provide better customer service.
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