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Supreme Court Won't Hear ACLU Wiretap Case

kdawson posted more than 6 years ago | from the standing-knee-deep-in-paradox dept.

Privacy 323

I Don't Believe in Imaginary Property writes "The US Supreme Court refused without comment the ACLU's appeal of a lower court ruling that prevented them from suing over the government's warrantless TSP program. The problem was a Catch-22: they lack legal 'standing' to sue over it because they can't prove that they were suspected terrorists, but neither can they find out who was actually suspected, because this is a matter of national security." Update: 02/20 00:17 GMT by KD : Removed an incorrect statement after a reader pointed out that, with the expiration of the Protect America Act this weekend, foreign surveillance will revert to oversight by the FISA court.

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Far too much power (-1, Troll)

nurb432 (527695) | more than 6 years ago | (#22481384)

The supreme court has.

Too many Yoda references (5, Funny)

spun (1352) | more than 6 years ago | (#22481544)

The Slashdot posters make.

Re:Far too much power (4, Interesting)

moderatorrater (1095745) | more than 6 years ago | (#22481618)

As demonstrated by their refusal to use it? The Supreme Court is probably the most easily abused of the three branches, it's true, but you've got to remember that there are still checks and balances. The president can refuse to execute a ruling (technically it's illegal, but it's been done), Congress can rewrite the law in a way that gets around the ruling, and they can even start the process of amending the constitution.

Looking from a purely constitutional perspective, the supreme court is also the branch that has abused its power the least imho. Congress routinely enacts laws that are only constitutional if justified by the "general welfare" clause of the preamble, not any part of the actual constitution. The president can send troops anywhere to fight that he wants without a declaration of war, and this president has outright ignored several parts of the constitution.

So, while I am a strong believer that the supreme court has had its share of overreaching rulings that weren't strictly constitutional, I think that pales in comparison to the abuses that the other branches have managed to pull off.

Re:Far too much power (4, Interesting)

DaHat (247651) | more than 6 years ago | (#22481804)

> the supreme court is also the branch that has abused its power the least

Really? You should double check the Constitution with regards to the enumerated powers (you know, what the 10th amendment discusses) of SCOTUS... in fact they are the ones (not the constitution) that declared themselves the supreme arbiter of the constitution (see Marbury v. Madison).

Technically speaking... the scope of power SCOTUS has is in of itself unconstitutional... problem is that as things have evolved... in order to change things back... we'd either need a SCOTUS ruling (of them giving up their power) or a constitutional amendment... which could still in theory be ignored by them (see cases of how they have ignored the 10th amendment).

Re:Far too much power (5, Interesting)

Chris Burke (6130) | more than 6 years ago | (#22482394)

Really? You should double check the Constitution with regards to the enumerated powers (you know, what the 10th amendment discusses) of SCOTUS... in fact they are the ones (not the constitution) that declared themselves the supreme arbiter of the constitution (see Marbury v. Madison).

How you figure? The Constitution itself states that the Judicial branch shall have jurisdiction over all cases arising under the Law of the U.S. and the Constitution. Marbury v Madison was just a case where a Law passed by Congress conflicted with the Constitution -- and again, it is clear from the Constitution that in such a case, the Constitution wins. That case may have formalized the notion of "Judicial Review", but the principle itself is quite Constitutional.

Oh and by the way, the statute which the Court ruled in Marbury v Madison to be Unconstitutional was one which increased the Court's power. It's kind of hard to call this a power grab when the executed their Constitutional power to judge a case under the law in order to reject an Unconstitutional increase in power.

see cases of how they have ignored the 10th amendment

True enough, everyone pretty much ignores the 9th and 10th. But it's worth pointing out that they ignore this ammendment by not finding a law passed by Congress to be in conflict with the 10th, and thus Unconstitutional. How exactly would they do this if not via Judicial Review as established via Marbury v Madison?

In other words this is a case of the Judicial Branch abusing their powers by under-utilizing them, resulting in an increase in power of the other two branches.

Re:Far too much power (4, Interesting)

rpillala (583965) | more than 6 years ago | (#22481920)

In Free Lunch [npr.org] , David Cay Johnston notes a trend in limiting access to the courts. In this way, If someone somewhere doesn't want a case to be heard, they just have to buy a little influence and can claim a legitimate victory. Note the reason the courts dismissed ACLU's earlier efforts in this line: only persons under surveillance have standing to sue, and the nature of the program is such that you're not allowed to know that you're under surveillance. That is, if you can prove that you have standing, you can be imprisoned. If you can prove that someone else has standing, you can be imprisoned.

In the book, Johnston details one case of a couple who owned an auto repair business in a spot where (I think) Jeep wanted green space for its factory complex. You can guess whose complaint was thrown out. These days it seems like there are only checks and balances when they're backed up by personal relationships or bullying. Note the number of subpoenas the white house has simply ignored.

Re:Far too much power (1)

Opportunist (166417) | more than 6 years ago | (#22482436)

Just so I get this straight, to defend my freedom, I have to incriminate myself and get arrested?

Re:Far too much power (4, Insightful)

palegray.net (1195047) | more than 6 years ago | (#22482418)

As demonstrated by their refusal to use it?
Sometimes that's the greatest power of all... the ability to stand by and do nothing with zero consequences.

Re:Far too much power (1)

Darren Hiebert (626456) | more than 6 years ago | (#22482492)

It's is naive to claim that the Supreme Court has too much power. Anyone who says that does not understand the law and the Constitution.

The Supreme Court can only hear, and rule on, complaints brought before it. For a complaint to be valid, it must be brought by an "injured party" (i.e. one harmed or affected in some demonstrable way). who brings their plaint (i.e. plaintiff) before the court. The court rules on the merits of the complaint. The ruling only has authority over that specific case; this does not make that ruling law. It does indicate how the court would theoretically rule on a similar case, but the Supreme Court is unlikely to rule on very similar caseit prefers to hear new cases with merits not before considered.

The effect of Supreme Court rulings does not compel other courts to rule the same way, although they are guided by legal precedent.

In short, the only power the Supreme Court has over anything but the specific case brought before it is whatever authority people believe it has (i.e. it influences people because of what they believe). However, the Supreme Court does not have actual authority to enforce its ruling upon any but the parties to the specific case.

Re:Far too much power (4, Insightful)

SlowMovingTarget (550823) | more than 6 years ago | (#22481814)

What, you want the U.S. Supreme Court to be forced into taking cases that don't meet legal criteria for bringing a lawsuit? That doesn't make sense. Any court in the U.S. has that power, by the way, not just the Supreme Court.

Would you prefer, then, that the U.S. Supreme Court hear the case and start issues subpoenas for classified information on behalf of the ACLU? That makes even less sense, as then the SC would be exercising far too much power.

If there is any digging to be done, the ACLU is not the one to do it, nor is the Supreme Court. That power is granted to the U.S. Congress by the Constitution. Congress must investigate, hold hearings, and can even produce a report detailing "injured" parties. It is at this point that those injured parties could sue, or join a class action suit brought by the ACLU.

By refusing to hear the case, the U.S. Supreme Court is correctly interpreting the law and the Constitution with regard to what powers it holds. In other words, the refusal was just right.

Re:Far too much power (0)

RiotingPacifist (1228016) | more than 6 years ago | (#22482314)

nah they have the right amount of power, its just that some idiot spent the last 8 years appointing crooks and lairs with amnesia to it. Next president should dismiss all the people bush has appointed and then fill it up with honest people (even if there honest democrats/republicans).

In other words (5, Funny)

MillionthMonkey (240664) | more than 6 years ago | (#22481394)

If you can sue us, we'll let you know, unless we consider that to be a secret.

Re:In other words (4, Informative)

cayenne8 (626475) | more than 6 years ago | (#22481700)

I thought this 'catch-22' type thing was the very thing that had been used to overturn laws like this? Wasn't this type of logic used for SCOTUS to overturn the marijuana tax stamp act in the 70's? That one said you couldn't legally sell pot unless you had a tax stamp, but, you couldn't get a tax stamp unless you had some pot to sell...etc. Basically you were breaking the law if you followed the law to get legal. I thought the SCOTUS said this was unconstitutional, and overturned it. (I believe it was Timothy Leary [wikipedia.org] that brought this suit). This pissed of Nixon and then they came up with the 'scheduling' of drugs act...that remains in force today.

Anyway, why would precedent on this type of law force them to look at this case?

Unless they fall for the trap (1)

SpaceLifeForm (228190) | more than 6 years ago | (#22481412)

Then proof will exist that there is standing.

Re:Unless they fall for the trap (-1, Offtopic)

Anonymous Coward | more than 6 years ago | (#22481696)

> You are being MICROattacked, from various angles, in a SOFT manner.

Lamest. Sig. EVER.

What did you expect? (4, Insightful)

Sepiraph (1162995) | more than 6 years ago | (#22481440)

Some of these guys are hand-picked by the very same administration, did you expect these shrewd men and women to bite the very hand that feeds them? Don't expect any real change unless there are fundamental changes to the whole administrative.

Re:What did you expect? (4, Interesting)

grahamd0 (1129971) | more than 6 years ago | (#22481740)

That hand doesn't feed them. They serve for life. The president has no political power over sitting justices. They ARE loyal cronies, but that won't change with administrations.

Re:What did you expect? (0)

Phroggy (441) | more than 6 years ago | (#22482070)

That hand doesn't feed them. They serve for life. The president has no political power over sitting justices. They ARE loyal cronies, but that won't change with administrations.
Precisely right. They're loyal to the Bush administration, and perhaps more generally to the Republican party or the Executive branch (this is why they were appointed), but it's entirely by their own choice; Bush has no power over them.

Not quite (2, Interesting)

el_munkie (145510) | more than 6 years ago | (#22481950)

...did you expect these shrewd men and women to bite the very hand that feeds them?

The whole point of the lifetime appointment of judges to the Supreme Court is that they wouldn't have to be beholden to whichever powers appointed them. Scalia, Alito, and Thomas could have a change of heart and become flag-burning, dope-smoking, abortion-promoting hippies, and there's really nothing that could be done to punish them. I think they can be impeached by Congress, but that isn't really common.

Re:What did you expect? (5, Informative)

Artagel (114272) | more than 6 years ago | (#22482056)

It takes 4 justices to grant certiorari to a case, except in certain capital punishment circumstances. http://www.law.cornell.edu/wex/index.php/Certiorari [cornell.edu] Therefore, we know that at most 3 justices were interested in hearing the case. None of them felt strongly enough about this to write a dissent from the denial of a grant of certiorari. That has happened in the anti-terrorism context, with Justice Breyer writing and Souter and Ginsburg joining. URL:www.supremecourtus.gov/opinions/06pdf/06-1195Breyer.pdf>. President Bush has appointed two out of 9. A full four, enough to grant certiorari, are liberal and often at odds with the president.

Regardless of your politics, the decision of the trial court was awful.
http://althouse.blogspot.com/2006/08/shocking-decision-in-aclu-v-nsa.html [blogspot.com] This just puts an ACLU fantasy about its reach to bed.

Justice is served.

Re:What did you expect? (3, Insightful)

Zordak (123132) | more than 6 years ago | (#22482136)

Some of these guys are hand-picked by the very same administration, did you expect these shrewd men and women to bite the very hand that feeds them? Don't expect any real change unless there are fundamental changes to the whole administrative.
Yeah, just look at John Paul Stevens and David Souter. Nothing but a couple of lap dogs for the Republicans.

Re:What did you expect? (4, Interesting)

ptbarnett (159784) | more than 6 years ago | (#22482232)

Some of these guys are hand-picked by the very same administration, did you expect these shrewd men and women to bite the very hand that feeds them? Don't expect any real change unless there are fundamental changes to the whole administrative.

This particular legal doctrine has nothing to do with the Bush administration. Despite the Catch-22 of "lack of standing", it's used quite often. Courts have been avoiding Second Amendment challenges for decades, using the same rationale.

A writ of certiorari requires only four votes among the nine Supreme Court justices. Four justices: Stevens, Souter, Ginsburg and Breyer, are generally thought of as the Court's liberal wing. If they felt strongly about this case, they could have voted to do so.

Re:What did you expect? (1)

iminplaya (723125) | more than 6 years ago | (#22482336)

Don't expect any real change unless there are fundamental changes to the whole administrative.

And that won't happen until 2013 at the earliest.

Those of us with something to hide... (4, Insightful)

KingSkippus (799657) | more than 6 years ago | (#22481446)

What's kind of depressing is how much the general public just doesn't care about this at all.

I'll admit up front: I have things to hide. Dirty little secrets that are none of your business, and that the government doesn't need to know. Things that are embarrassing, things that could be used to damage my reputation, nothing particularly dangerous, but stuff that should be between me, myself, and I, and no one else.

I think most people are like that, even the ones who proclaim so loudly that they have nothing to hide. I mean, if you have something to hide, you're a terrorist, right? The government could never use your dirty little secrets in any shape, form, or fashion, right? Because the government never loses our personal information, never has "leaks" that could reveal compromising information, would never do anything seedy for purely political purposes?

All of those who have "nothing to hide" are really starting to piss off those of us who do.

Re:Those of us with something to hide... (2, Informative)

stoolpigeon (454276) | more than 6 years ago | (#22481516)

well, unless it is between you and at least one other person, over the phone - wiretapping isn't going to be a problem. not disagreeing that people should be concerned - but this isn't an issue for things that are "stuff that should be between me, myself, and I, and no one else."

Re:Those of us with something to hide... (4, Insightful)

Romancer (19668) | more than 6 years ago | (#22481856)

Uh, it doesn't have to be with a person that knows who you are. How many times have you talked with a person that didn't know your name or could't identify you? So these wiretappinhg issues are also about the right to privacy when you wish the privacy te remain intact. Calling to find out when a certain church is open, calling to ask the location of a certain bookstore, adult vieo rental store, or any other general information conversation can be logged with very real weight but the second person doesn't have the same need for privacy in these cases since they are tied to the location in other fashions. the wiretapping issue completely dissolves the privacy of phone conversations unless there are stopgaps in place to prohibit the misuse of data collection. Namely warrants and limitation scopes of information retrieved. That's why they were put there in the first place. So that people in the future wouldn't abuse the access to this type of information, not so that they could do an end run around the constitutional rights of the citizens and bypass the checks and ballances. The "it makes it harder" line is BS since making it easy isn't the only goal. We're protecting our way of life as well as our lives here. So to all those who claim patriotism without knowing what it means to sacrifice ease of safety for peace of moral mind, go look up the history from where we came and what we've been through to get the rights that are being stripped from us.

"The only thing we have to fear is fear itself."

That's because fear is the only thing that will always lead us to hurt ourselves while we are under its control. The fear of dying will strip us of our rights to live. The threat of anonymous terrorists will allow the domestic terrorists we elected to weild impending doom over our heads and threaten us with more attacks unless we bow to the demands to give them more power. If we do not obey or question that power we are labled enemy combatants and no longer have the rights we were afforded as citizens and we are then shipped away to where the remaining laws we haven't lost cannot even protect us. Torture by any other name, and terror by any guise are both using fear to conquor the will. And we are letting it happen. /rant (got a little carried away there)

Re:Those of us with something to hide... (1)

Jimithing DMB (29796) | more than 6 years ago | (#22481530)

I'll admit up front: I have things to hide. Dirty little secrets that are none of your business, and that the government doesn't need to know. Things that are embarrassing, things that could be used to damage my reputation, nothing particularly dangerous, but stuff that should be between me, myself, and I, and no one else.

Unless the government has come up with some way to read your mind I think you're safe.

Re:Those of us with something to hide... (-1, Flamebait)

Anonymous Coward | more than 6 years ago | (#22481576)

Get over yourself. You're not that important to the government. You really think the government is wiretapping you to find out that you have a fetish for tranny porn and follow the news on Tom Brady a little too closely? They are wiretapping communications between the US and overseas. If you keep your Tom Brady sleuthing to US-only, you'll be fine.

Re:Those of us with something to hide... (3, Insightful)

AP2k (991160) | more than 6 years ago | (#22481614)

I'm sure the vast majority of Britons were unaffected by illegal search and seizure by British authorities, but the American founding fathers thought it was wrong to do to anyone under any circumstance. Are you calling our founding fathers terrorists, comrade?

Re:Those of us with something to hide... (2, Funny)

ArcherB (796902) | more than 6 years ago | (#22481982)

I'm sure the vast majority of Britons were unaffected by illegal search and seizure by British authorities, but the American founding fathers thought it was wrong to do to anyone under any circumstance. Are you calling our founding fathers terrorists, comrade?
No. Our founding fathers didn't think that wiretapping was important enough to be included. Just like they didn't include any rights for citizens traveling via airplane.

Re:Those of us with something to hide... (1, Funny)

Anonymous Coward | more than 6 years ago | (#22482408)

Just like they didn't include any rights for citizens traveling via airplane.

And so the invention of airplanes automagically stripped rights endowed by the Creator from men who used them? I always thought those dag-blasted things were an abomination, why, if God had intended for humans to fly, he'd have given us wings!

Re:Those of us with something to hide... (1, Funny)

Anonymous Coward | more than 6 years ago | (#22482012)

They were, they overthrew england... er waitaminute

Re:Those of us with something to hide... (4, Insightful)

Qzukk (229616) | more than 6 years ago | (#22481818)

You're not that important to the government

How important is "that important"? As the marginal cost of wiretapping decreases towards zero, I think you'll find that more and more people are going to be "that important".

Re:Those of us with something to hide... (4, Funny)

GodfatherofSoul (174979) | more than 6 years ago | (#22481694)

I'll admit up front: I have things to hide.

Oooh, are you into BBW too?

Re:Those of us with something to hide... (4, Funny)

garett_spencley (193892) | more than 6 years ago | (#22481800)

"I'll admit up front: I have things to hide. Dirty little secrets that are none of your business, and that the government doesn't need to know. Things that are embarrassing, things that could be used to damage my reputation, nothing particularly dangerous, but stuff that should be between me, myself, and I, and no one else."

Like what ?

Evidence that Slashdot has become self-aware (2, Funny)

Goobermunch (771199) | more than 6 years ago | (#22481944)

This was the quote at the bottom of the page as I read this article:

"paranoia, n.: A healthy understanding of the way the universe works."

--AC

Get it out in the open! (2, Funny)

supercrisp (936036) | more than 6 years ago | (#22482148)

Let's get those skeletons out of the closet. I'll start. I masturbate. I have soiled myself on occasion. And I frequently inhaled in the presence of pot. I drank before I was 21, and I often exceed the speed limit. I regularly roll through a stop sign near my house. And I am greedy when it comes to sweets. Now they've got nothing on me. See how good it makes you..... Wait a minute, someone's at the door, brb.

Re:Those of us with something to hide... (2, Insightful)

huckamania (533052) | more than 6 years ago | (#22482224)

but stuff that should be between me, myself, and I, and no one else
Then why are you talking about it on the phone? Are you calling yourself?

The reason why SCOTUS refused the case is because the ACLU doesn't have standing. Those who are performing the wiretaps would be really, really stupid to show the list of those they are tapping to anyone else, especially a group on a fishing expedition to sue them.

If the wiretappers did show the list to the ACLU, the ACLU would sue them for doing the wiretaps. Then, they would sue them for releasing the information. Can't have the government leaking stuff like this even if it is because they filed a lawsuit and won.

Quick Summation (4, Insightful)

milsoRgen (1016505) | more than 6 years ago | (#22481458)

"It's very disturbing that the president's actions will go unremarked upon by the court," said Jameel Jaffer
That about sums it up, but it's certainly not the first 'very disturbing' action we the people have had to witness and suffer through during these last 2 terms.

Re:Quick Summation (0)

Anonymous Coward | more than 6 years ago | (#22481588)

And it won't be the last.

Re:Quick Summation (1)

chicago_scott (458445) | more than 6 years ago | (#22481872)

It's the last four terms that I've found to be very disturbing. And the three terms before that I would consider to just be plain disturbing.

Must be a terrorist to challenge the law? (2, Interesting)

alapbj (1242530) | more than 6 years ago | (#22481462)

Let me get this straight - we will have to rely on a suspected terrorist to sue for this to go forward?

Re:Must be a terrorist to challenge the law? (3, Funny)

milsoRgen (1016505) | more than 6 years ago | (#22481522)

Let me get this straight - we will have to rely on a suspected terrorist to sue for this to go forward?
That shouldn't worry you at all, what our government considers a terrorist is so broad I don't think we would have to rely on your atypical camel-riding-cave-dweller to move this forward. Just someone who get the label by our dangerous and overzealous government.

Re:Must be a terrorist to challenge the law? (1, Troll)

Beardo the Bearded (321478) | more than 6 years ago | (#22481526)

No.

I (and and many others) suspect that the Democratic presidential candidates are those who have been wiretapped illegally.

Re:Must be a terrorist to challenge the law? (1)

dpilot (134227) | more than 6 years ago | (#22481824)

It's just that you'll need proof before you can sue.

Besides, from another perspective, right now we're in the midst of a gigantic conspiracy to unseat and replace the government of the US. They even know the target date - next November and the following January. So it's merely a matter of using the tools of government to foil this heinous attempt at overthrow.

Re:Must be a terrorist to challenge the law? (2, Informative)

Chris Burke (6130) | more than 6 years ago | (#22482194)

Let me get this straight - we will have to rely on a suspected terrorist to sue for this to go forward?

Indications are that the government spied on thousands of people, and based on what the AT&T worker who installed the hardware said, it's quite possible that they gathered communications from millions of people in a way that would require a warrant. Ultimately this whole fiasco is due to the fact that the Executive's definition of "suspected terrorist" is so loose and flimsy that not even FISA, a court known for rubber-stamping anything that comes before it, would agree that the searches were warranted.

But yes, in order to have standing to sue the government, you have to be able to show that you were one of the people whose rights were violated by a warrant-less search. How on earth you're supposed to prove that is left as an exercise for the citizen. I saw this whole "standing" issue coming a mile away.

That's why the lawsuits against the telcos are so important -- the discovery phase is when evidence would be acquired as to exactly who was subject to spying, which would open the door for those people to have standing to sue the government. I don't know the specifics as to why it isn't the same issue with the telco lawsuits, but clearly the bar for suing the government is higher since the telco lawsuits weren't summarily rejected on the same grounds. This is why the retro-active immunity is so abhorrent -- no matter what they say, it's about the government covering its own ass.

Remind me (0)

Anonymous Coward | more than 6 years ago | (#22481472)

There's a line, I think it's in the national anthem of the United States of America and is intended to echo the general tone of some document, I think it's the Bill of Rights or something like that. If my mind is still working the line includes the phrase "The land of the free"

So, hows that working out for you all these days?

What was that again? (5, Insightful)

KublaiKhan (522918) | more than 6 years ago | (#22481476)

Something about how no charges shall issue except on a warrant or something like that?

Wasn't one of the bits in the declaration of independence criticizing King George III about secret trials?

Bit sad, really, that it's coming to this.

Re:What was that again? (4, Interesting)

Stanistani (808333) | more than 6 years ago | (#22481642)

Those boxes you use to defend your freedom, we've already failed on soap, ballot, and jury.

Damn, and I'm out of practice on the last one.

Re:What was that again? (0, Redundant)

QuantumRiff (120817) | more than 6 years ago | (#22482034)

Yeah, but you forgot the 4th one, "Ammo"

I'm pretty sure this comment is going to get me on the No-Fly list.. but what the hell..

Re:What was that again? (2, Insightful)

dpilot (134227) | more than 6 years ago | (#22481786)

But then you'll get the argument that the Declaration of Independence is an historical document, and has no legal force like the Constitution. Those will be the same people who tell you that because some individual right is not specifically mentioned in the Constitution or Amendments, you don't have it. (I don't have the patience at the moment to look up the specific contrary language in both the Constitution and the Bill of Rights.)

Welcome... (0)

Anonymous Coward | more than 6 years ago | (#22481496)

The real world has now officially outed itself as the movie "Brazil!"

Seems we need a wistle-blower at the NSA (5, Insightful)

greenslashpurple (1236792) | more than 6 years ago | (#22481542)

And an independent media (e.g. James Risen at the New York Times) to publish some lists of people who have been illegally wire-tapped. Or maybe some technician who works for a major communications network can upload the list of names/numbers they've been tasked to set up monitors on.

Re:Seems we need a wistle-blower at the NSA (1)

jfengel (409917) | more than 6 years ago | (#22481836)

The list you're seeking may not exist. The smoking gun would be some liberal or Democratic organization whose phones were tapped for purely political reasons.

It's entirely possible that it has never happened. The decision is disturbing because it _enables_ the abuse of power, without actually indicating that the abuse of power has in fact occurred.

Supporters of the warrantless wiretap are basically trusting that it won't occur, and that all warrantless wiretaps are used against valid terrorist targets. The ACLU's claim is that (a) it's illegal anyway, even if used against actual terrorists, and (b) the checks-and-balances are eliminated, making abuses likely simply because they're possible, even if they haven't happened.

Justice Roberts has said that he'd rather use the Supreme Court to hear actual cases, rather than hypothetical ones. That makes the ACLU livid, since it can easily be too late by the time an actual abuse has occurred. Roberts says his interpretation of the Constitution ties his hands: no harm means no foul.

Which means that we're back to relying on our faith in individual agents of the US government to tell us if an actual abuse occurs, which is what the checks-and-balances (and the FISA court in particular, in this case) were supposed to prevent.

Re:Seems we need a wistle-blower at the NSA (1)

Phroggy (441) | more than 6 years ago | (#22482140)

I think you've missed what the grandparent post was trying to suggest: the government says you can't sue them for wiretapping your phone because you don't know they actually did it, because they won't tell you. That's what this decision upholds. But if someone leaks a list, and you're on it, then you know they really did wiretap you, so now you can sue them for doing it.

Re:Seems we need a wistle-blower at the NSA (1)

jfengel (409917) | more than 6 years ago | (#22482440)

Right, but that assumes that such a list exists. There may not actually be such a list, or it may be that the only people on it are non-citizens without the standing to sue.

There may not actually be anybody with the standing to sue, yet. The Bush administration is essentially telling us that there won't ever actually be one, because they're only wiretapping bad guys. The ACLU wants to know how they can know that's true, and they're especially suspicious because the bar to get a warrant isn't terribly high.

If a law permits abuse, but it isn't actually ever abused, is it still unconstitutional? The Court appears to be saying "no".

Re:Seems we need a wistle-blower at the NSA (0)

Anonymous Coward | more than 6 years ago | (#22482096)

There already was one (or maybe it was just an incompetent agent, malice vs incompetence and all that jazz), the ACLU just backed the wrong horse in this race.

This guy got his own transcript in the mail [wired.com] . So there's at least one person out there that can prove that they do, in fact, have standing to sue.

Of course, as soon as they sued, the government took the transcript back and won't let anyone look at it. How long until the government uses that exact same tactic to start arresting citizens it doesn't like for completely made up crimes? "Well, we have proof that you did these terrible, terrible illegal things but nobody is allowed to see the evidence that these things happened or that you did it, the jury will just have to take our word for it."

Re:Seems we need a wistle-blower at the NSA (0)

Anonymous Coward | more than 6 years ago | (#22482162)

They just spy on everyone nowadays. No doubt they save every message including certain keywords for X length of time or whatever.

I'm pretty sure they're doing mass keyword mining, though. When you add all the talk about terrorist "chatter" to the massive internet taps, it's not hard to imagine that one of the few things they can do with that much unsorted data is a bit of statistical sampling.

And then they could post it on Wikileaks... (3, Funny)

PRMan (959735) | more than 6 years ago | (#22482300)

Oh, wait...

Olden Times (5, Insightful)

Sanat (702) | more than 6 years ago | (#22481566)

It is interesting to see what the Supreme Court has ruled upon or refused to advise upon from the past... whether the subject was slavery or other free rights... they constantly get it wrong. Example:

In March of 1857, the United States Supreme Court, led by Chief Justice Roger B. Taney, declared that all blacks -- slaves as well as free -- were not and could never become citizens of the United States. The court also declared the 1820 Missouri Compromise unconstitutional, thus permiting slavery in all of the country's territories.

The case before the court was that of Dred Scott v. Sanford. Dred Scott, a slave who had lived in the free state of Illinois and the free territory of Wisconsin before moving back to the slave state of Missouri, had appealed to the Supreme Court in hopes of being granted his freedom.

Taney -- a staunch supporter of slavery and intent on protecting southerners from northern aggression -- wrote in the Court's majority opinion that, because Scott was black, he was not a citizen and therefore had no right to sue. The framers of the Constitution, he wrote, believed that blacks "had no rights which the white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery for his benefit. He was bought and sold and treated as an ordinary article of merchandise and traffic, whenever profit could be made by it."

Referring to the language in the Declaration of Independence that includes the phrase, "all men are created equal," Taney reasoned that "it is too clear for dispute, that the enslaved African race were not intended to be included, and formed no part of the people who framed and adopted this declaration. . . ."

props to PBS

This is the same Catch-22...

Re:Olden Times (1)

Thondermonst (613766) | more than 6 years ago | (#22481716)

Well, we all know how they got rid of the Catch-22 back then...

Re:Olden Times (0)

Anonymous Coward | more than 6 years ago | (#22481934)

Re:Olden Times (1)

gardyloo (512791) | more than 6 years ago | (#22482008)

Is the NY Times still necessary? /snark

Didn't they have a person who was tapped? (0)

Anonymous Coward | more than 6 years ago | (#22481582)

Wasn't there one guy who was "accidentally" mailed the transcript of one of his own phone calls, only to have the FBI show up a couple of days later to take it back and tell him to forget that it happened?

U.S. government: Lots of catches (2, Insightful)

Futurepower(R) (558542) | more than 6 years ago | (#22481612)

Catch-22: The U.S. government is too corrupt to investigate corruption.

Catch-23: Oil and weapons investors Cheney and Bush want the price of oil and weapons to rise, so Iraqis must die.

Cheney and Bush have killed more Americans than the terrorists, and far more Iraqis than Saddam Hussein.

Re:U.S. government: Lots of catches (1)

bendodge (998616) | more than 6 years ago | (#22482242)

Cheney and Bush have killed more Americans than the terrorists, and far more Iraqis than Saddam Hussein.
I'd like some hard, cited statistics on that. It's true that the Bush administration has done some bad things, but I think you're just postulating here.

Re:U.S. government: Lots of catches (1)

Breakfast Pants (323698) | more than 6 years ago | (#22482396)

I don't agree that we killed more Iraqis than Saddam (not even close), but Bush has definitely killed more Americans in his term than terrorists have (referring to our troop casualties).

Perfect work-avoidance scheme (1)

Futurepower(R) (558542) | more than 6 years ago | (#22482296)

My understanding is that the U.S. Supreme Court hears only about 50 of the 5,000 cases that people try to bring before it.

That's a perfect work-avoidance scheme: "We just do as much work as we want to do."

If a case gets all the way to the U.S. Supreme Court, that indicates SOMETHING is broken. However, faults in the law generally cannot be fixed because of a conflict of interest. A large part of what lawyers do is work generated by faults in the law. They don't want most of their work taken away from them. United States Supreme Court justices are lawyers, and they think like lawyers to a large extent, and they have allowed themselves to become comfortable with the faults in the law. It's all a huge work-avoidance operation.

Re:U.S. government: Lots of catches (3, Insightful)

tgatliff (311583) | more than 6 years ago | (#22482390)

So why again does Bush and Cheney want the price of oil to rise? Last time I checked they no longer own any oil assets and would not personally profit for a rise or fall in oil... If they did, no doubt Congress would scream this fact for all to hear.....

Also, the Oil futures market is much larger than anything going on in Iraq. Oil is rising not because of anything Bush or Cheney or the US is doing, but rather because you have over 2 billion people slowing rising in the middle class in Asia. Not to mention that "easy" oil is getting increasing more difficult to find. The good side is that alternate energy sources are finally getting a chance to prosper and we should be in the next decade finally be able to break our dependence on middle eastern oil sources..

Finally, just for the record I am certainly no fan of Bush, but I also dislike thoughtless propoganda statements with no logical backing...

Re:U.S. government: Lots of catches (2, Insightful)

localman (111171) | more than 6 years ago | (#22482470)

I agree with the sentiment expressed in your post, but factually I don't believe the Bush/Cheney war has surpassed Saddam's death toll yet. Most famously he massacred around 100,000 Kurds [wikipedia.org] between 1986 and 1989. He did plenty of other awful things too. The Iraqi body count [iraqbodycount.org] has the war approaching 90,000.

Of course, both of these numbers are absolutely abominable, and this war is not about those killings (the US was buddies with him back then), so it's not like one is the cost of stopping the other. Still, it's worth noting that Saddam was a bad, bad man.

Cheers

No problem! (0)

Anonymous Coward | more than 6 years ago | (#22481644)

This is nothing that a little Kevin Mitnick-style social engineering can't solve.

Before the Law (4, Interesting)

paulthomas (685756) | more than 6 years ago | (#22481660)

Recommended reading: Kafka's Before The Law Between this and secret laws for security checkpoints at airports, Kafka's absurd vignette is looking looking unsettlingly normal.

Only 95% onerous (3, Interesting)

Dachannien (617929) | more than 6 years ago | (#22481678)

When it comes down to it, this ruling (and the ruling of the lower court) isn't 100% onerous, because a US citizen who is tried using evidence obtained in this manner would finally have standing to contest the government's actions. In such a case, if (or, should I say, when) the government's wiretapping is found to be illegal, the evidence would be suppressed, and if the government's case was otherwise weak, the charges could be dismissed. If a person isn't practically affected in their ability to conduct legal day-to-day activities, then it's a reasonable conclusion (whether or not it's a correct one) that they were not damaged and therefore have no standing to sue.

Of course, it's still 95% onerous, because there are still people reviewing the wiretap data (recordings, records, etc.) and those people are privy to otherwise private conversations.

Re:Only 95% onerous (1, Interesting)

Anonymous Coward | more than 6 years ago | (#22481928)

Assuming, of course that the matter ever came before a public court. Depending how paranoid you are feeling, any of the following could occur:

1. The evidence could be presented before a closed court, with the record sealed. The judge and/or defense may ignore the scource of the evidence.
2. The evidence could be presented in more of a "tribunal" setting.
3. The "accused" could just be shipped off to Guantanamo or some secret prison in Europe for "questioning".

Frankly, all of these are believable, given news in the last few years.

WRONG! (2, Insightful)

Tanman (90298) | more than 6 years ago | (#22482026)

No, this is 100% Fed-Certified Grade-A bullshit. Why? Because this is a green light for the crooks in power to continue doing this kind of thing. And what kind of trial do you think you will get with the evidence collected?

Guess what, you won't be tried. Ever. You will be held so that they can illegally solicit more evidence from you through nefarius means such extradition out-of-country, or just a secret location somewhere in Washington. Did I mention that the illegal solicitation of further evidence means you will be chained up in a dungeon for 10-15 years with no legal recourse whatsoever being exposed to God-knows-what kinds of "interrogation techniques?"

Re:Only 95% onerous (1)

gillbates (106458) | more than 6 years ago | (#22482104)

The problem is that invading one's privacy, even if only a suspected invasion, is damaging to the individual.

How is this any different from the police coming to visit you every night, and sticking around until you go to bed? When it comes down to it, you'd be hard pressed to show any actual damages from such behavior, yet the thought of this is unsettling to even the most radical neo-cons.

The problem is that freedom, even if it does not have a monetary equivalent, still has tremendous value. The government listening in on your conversations is little different from them actually trespassing on your property. Neither have imposed a monetary cost on you, but they have infringed on the most basic human freedom, the freedom of thought and conscience. In a likewise manner, if people suspect that their conversations are monitored, they will not express their most intimate thoughts, for fear that they may used against them. Worse, such restrictions on human freedom stifle the relationships we have with others.

Re:Only 95% onerous (0)

Anonymous Coward | more than 6 years ago | (#22482146)

Uh, hello??!?! Secret courts? OH, right, after this I'm sure we'll be tried in a fair and open manner....

The Argument Sketch (5, Funny)

MillionthMonkey (240664) | more than 6 years ago | (#22481714)

Well?
Well what?
You're listening to my phone calls and it's not a secret.
I told you, you're not allowed to sue me unless you know my secret.
But I do!
No you don't.
I DO!
No you don't.
Look, I don't want you spying on me.
Well, that's a secret.
Aha. If it's a secret, I must be a terrorist, so it's not a secret anymore! I got you!
No you haven't.
Yes I have. If it's an official government secret that you're spying on me, I must be a terrorist.
Not necessarily. I could be listening to your phone calls in my spare time.

Re:The Argument Sketch (-1, Redundant)

Zymergy (803632) | more than 6 years ago | (#22481926)

Anyone else see the Monty Python potential from this?
I keep thinking there is some way to honor the classic Michael Palin and John Cleese 'Dead Parrot Sketch' out of this.. http://www.youtube.com/watch?v=hTSAFcLXqYY [youtube.com]

Where's Black Sabbath when you need them? (0, Flamebait)

FurryOne (618961) | more than 6 years ago | (#22481754)

Maybe we should change the national anthem of America to Black Sabbath's "War Pigs". It would certainly be more in line with the last 8 years of this farce of a government. Oh, wait... was that the Constitution floating by in the sewer?

Re:Where's Black Sabbath when you need them? (1)

BlackSabbath (118110) | more than 6 years ago | (#22482176)

You rang?

The lack of transparency is really disturbing... (5, Insightful)

gillbates (106458) | more than 6 years ago | (#22481784)

The fact that the government is let off the hook because the victims can't legally show harm - that is, they are prevented from actually knowing if their privacy is invaded - is quite disturbing. A child pornographer could use the same argument; that because his children (err, victims...) aren't old enough to understand the harm done to them, that they have no grounds for objecting to their pictures being taken.

I think, though, that there's a double standard when it comes to government. Unlike "terrorists" - which are presumed guilty except when there exists incontrovertible exculpatory evidece - the government is presumed innocent, and its evidence and intentions beyond reproach, except when the accused manage, by some legal loophole, to show otherwise.

Justice at the federal level has completely changed:

  • Instead of being presumed innocent, the accused are presumed guilty, and not even tried, except in cases where their lawyers manage to find some way around the executive branch.
  • Even when the accused do get to trial, they are tried in secret courts, where they are not allowed to see the evidence against them, if they are allowed to attend the trial at all.

"If you aren't doing anything wrong, what do you have to hide?"

Indeed, all patriotic Americans need to ask themselves this question of the government, particularly the executive branch. If indeed, they aren't doing anything wrong, why must they keep everything so secret - even from Congress and the Courts? Isn't it more likely that they are using the secrecy to cover up activities that most Americans would consider wrong?

Most worrisome is the fact that we have gone from an open society which feared nothing ("The only thing we have to fear is fear itself...") to a society where everyone is suspect and fear of what one might do is sufficient to deny anyone and everyone their rights under the law. The justice system has been transformed from an open and transparent process which followed the principles of fairness to a capricious and arbitrary exercise of power.

Bah (2, Insightful)

Puffy Director Pants (1242492) | more than 6 years ago | (#22481790)

We need a Congressional hearing plain and simple. The US Congress doesn't have to worry about standing, it's their job to be concerned about the business of the gov't. Too bad they're so lazy.

Re:Bah (2, Insightful)

Grandiloquence (1180099) | more than 6 years ago | (#22481906)

"Lazy" is one possible explanation. "In cahoots" is the other. I know which one seems more plausible to me...

The Rule of Law (5, Insightful)

Tom (822) | more than 6 years ago | (#22481864)

...is over in the US. One basic principle of it is that the law applies to everyone equally, that nobody is "above the law". There can be exceptions and special priviledges as long as they are written into the laws. So in most countries MPs are exempt from prosecution, for good reasons, and that's ok because it's part of the process.

In the US, the rule of law has been abandoned. You are back to the rule of power: Everyone does whatever he can get away with. Your so-called president leading the way.

Plus ca change... (1)

Deadstick (535032) | more than 6 years ago | (#22481866)

The problem was a Catch-22: they lack legal 'standing' to sue over it because they can't prove that they were suspected terrorists, but neither can they find out who was actually suspected, because this is a matter of national security.

...plus c'est la meme chose. The French used that same crap on Alfred Dreyfus in 1894.

rj

Question of standing (0)

Anonymous Coward | more than 6 years ago | (#22481908)

Who has standing?

It seems to me, if the government is violating its charter (the Constitution) and usurping powers not granted to it by the people, then any and all citizens have standing to sue.

Re:Question of standing (1)

Mesa MIke (1193721) | more than 6 years ago | (#22482360)

Yeah, but apparently you gotta prove the government is violating your constitutional rights.
That's the sticky part.

Fishing season over (0, Flamebait)

Kenrod (188428) | more than 6 years ago | (#22481910)

This is great news. The federal courts shouldn't be used as a fishing hole for every citizen who imagines they've been spied on or desires to expose state secrets. Our enemies want to destroy our way of life, let's not hand them the knife and stretch our throats.

Re:Fishing season over (1)

Grandiloquence (1180099) | more than 6 years ago | (#22482144)

Yeah, we're perfectly capable of doing it ourselves, thank you very much. We don' need no furrn' scumbags putting honest, hardworking American scumbags out of work!

Re:Fishing season over (1)

DeadCatX2 (950953) | more than 6 years ago | (#22482282)

This is definitely a fishing expedition. After all, our government would never break the law [salon.com] or torture innocent [wikipedia.org] people [wikipedia.org] and then try to avoid any accountability.

Re:Fishing season over (1)

faraway (174370) | more than 6 years ago | (#22482328)

Our enemies want to destroy our way of life, let's not hand them the knife and stretch our throats.
I think the point is, we're doing an excellent job destroying our way of life ourselves. This case is the perfect example of the erosion of the American morals and principles upon which the country was founded. Congratulations. Terrorists:1,Corporations:1,Regular People/Freedom:0. The US has not had and does not have a terrorism problem. Israel has a terrorism problem. Iraq, now, has a terrorism problem.

The US is all flowers and puppies. And corporations.

Please welcome our new corporate dictatorship. I for one am glad I have dual US/EU citizenship. You'll enjoy WALMART, I'll enjoy a continent devoid of those who created the mess the US is in in the first place.

Regards.

Excellent post (1)

roystgnr (4015) | more than 6 years ago | (#22482404)

I'm sure it was even better in the original German.

indeed (0)

Teflon_Jeff (1221290) | more than 6 years ago | (#22482030)

While I wish the Supreme Court would have heard the case, they are right in their decision. Unlike every other branch of government, they seem to be playing by the rules, even if they don't like them.

So what were the damages done? (-1, Troll)

haakondahl (893488) | more than 6 years ago | (#22482054)

What damage is alleged to have been done if "...no one knows or can know whether they were illegally spied upon"?

What if I want to go through the files of a certain investigation down at the Police Department, just because I want to know whether I have been named by anybody, in any capacity? Me, me, me--that's what I keep hearing about on Slashdot. Nevermind all of the people trying to do their jobs and protect us all. Keep me safe, just don't bring *me* into it.

Children.

Hmmm... (4, Insightful)

haakondahl (893488) | more than 6 years ago | (#22482278)

I Don't Believe in Imaginary Property writes: "...no one knows or can know whether they were illegally spied upon."

Supreme Court writes: "We don't believe in imaginary problems."

ACLU just fishing to make some money. (-1)

Anonymous Coward | more than 6 years ago | (#22482294)

This is the same group whom Supports NAMBLA and Neo-Nazi groups [wikipedia.org] . Sounds to me like they are fishing the government so they can get some more money from the court cases.

These people are the NSA's real targets! (1)

Doug52392 (1094585) | more than 6 years ago | (#22482318)

I find it VERY hard to believe that the government actually thinks that terrorists would be dumb enough to still use a medium of communication they KNOW the NSA is listening in on. So that leaves the logical question: Who REALLY are the targets of the warrantless wiretapping program?

The answer is simple: civil rights advocates, right wing conspiracy theorists, and computer geeks. The NSA want to listen in to IRC chats, instant messages, and blogs of people who oppose the governments sick and twisted practices, and stand up for their rights. Now anyone who commented on this post could be arrested under the USA PATRIOT Act...

What next? A government controlled Internet?

I forgot that spying is in the constitution (2, Funny)

Bryansix (761547) | more than 6 years ago | (#22482350)

Oh wait, it's not? Darn.

Put up or shut it (0)

Anonymous Coward | more than 6 years ago | (#22482454)

So if you don't like it, do something about it. Otherwise, go back to your plasma and your wheaties and shut the fuck up.
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