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The Supreme Court has declined to review an appeal from the ACLU challenging the administration's warrantless wiretapping program:

The American Civil Liberties Union wanted the court to allow a lawsuit by the group and individuals over the wiretapping program. The 6th U.S. Circuit Court of Appeals dismissed the suit, saying the plaintiffs could not prove their communications had been monitored.

The government has refused to turn over information about the closely guarded program that could reveal who has been under surveillance.

ACLU legal director Steven R. Shapiro has said his group is in a "Catch-22" because the government says the identities of people whose communications have been intercepted is secret. But only people who know they have been wiretapped can sue over the program, Shapiro has said.

For the case to go forward, a majority of the four justices had to vote in favor. Apparently in the Roberts court, there aren't four votes in favor of examining warrantless wiretapping more closely. The case was dismissed without comment by the Court, so we need to look back to the Sixth Circuit Appeals court's decision for possible reasoning on the issue of whether the groups and individuals the ACLU was representing have standing. Here's what Marty Lederman wrote about that ruling.

This is not a case in which the government's alleged unlawful conduct did not harm anyone and in which the judiciary is therefore merely being asked to sit in judgment of a coordinate branch's lawfulness -- something that arguably is better suited for the political branches. There is no doubt that many, many U.S. persons were legally injured by the TSP program (at least to the effect their statutory rights under FISA were violated). Indeed, it is almost certain that some of the plaintiffs and/or their clients were surveilled under TSP (and would not have been surveilled, certainly not to the same extent, if the NSA had complied with FISA -- see below). Therefore, even if one accepts the modern Supreme Court standing doctrine, there are some plaintiffs out there with standing to sue -- at worst, we simply can't tell who those persons are. (Moreover, such indeterminacy and uncertainty about the scope of the program actually increases the number of persons who fear such surveillance and whose speech is therefore chilled.) And it is highly likely that there are persons with standing among the plaintiffs themselves.

Where that is the case, and where the only reason we cannot identify for certain which plaintiffs were surveilled is because of the wrongdoer's own secrecy, wouldn't that argue for at least a rebuttable presumption that there are some in the plaintiff class with standing? Indeed, isn't that presumption even stronger here because the NSA is unwilling even to claim, let alone to prove, that it did not surveille any of the plaintiffs or their clients in the TSP program? (If the NSA did not, in fact, surveille any of them, I can think of no good reason -- certainly not a so-called state secrets privilege -- why the agency could not inform the court of that fact.)

We do know that there are persons with standing to sue, we don't know who they are. One avenue for finding that out has now effectively been shut down. Another avenue--aggressive Congressional investigation--is never going to happen.

So that leaves one avenue--lawsuits against the telcos who participated. As of now, those lawsuits are still viable. There are still cases pending in the 9th Circuit brought by Electronic Frontier Foundation and the ACLU. Update: for clarity's sake--because of an inadvertent document release by the government, we do know who many of the people targeted are. The standing issue is thus much stronger in these cases. But....

And these cases continue only if the House holds the line against granting the telcos retroactive amnesty. We're right back where we started.

Update: The ACLU response (via e-mail):

Jameel Jaffer, Director of the ACLU’s National Security Project:

"Congress enacted the Foreign Intelligence Surveillance Act intending to protect the rights of U.S. citizens and residents, and the president systematically broke that law over a period of more than five years. It’s very disturbing that the president’s actions will not be reviewed by the Supreme Court. It shouldn’t be left to executive branch officials alone to determine what limits apply to their own surveillance activities and whether those limits are being honored. Allowing the executive branch to police itself flies in the face of the constitutional system of checks and balances."

Steven R. Shapiro, Legal Director of the ACLU:

"Although we are deeply disappointed with the Supreme Court’s refusal to review this case, it is worth noting that today’s action says nothing about the case’s merits and does not suggest in any way an endorsement of the lower court’s decision. The court’s unwillingness to act makes it even more important that Congress insist on legislative safeguards that will protect civil liberties without jeopardizing national security."

Originally posted to Daily Kos on Tue Feb 19, 2008 at 08:57 AM PST.

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Comment Preferences

  •  I though only 4 justices had to decide to hear (4+ / 0-)
    Recommended by:
    Rolfyboy6, The Maven, RFK Lives, MJB

    an appeal.

    And I know in Constitutional Law we discussed that sometimes those 4 won't bring a case, because they know they'll be outvoted and perhaps create bad law.

    The presidency is now a cross between a popularity contest and a high school debate, with an encyclopedia of clichés the first prize. Saul Bellow

    by AUBoy2007 on Tue Feb 19, 2008 at 08:58:44 AM PST

    •  Correct (5+ / 0-)

      This means that only 3 or fewer justices voted to hear the case.

      However, we might have 4 votes in our favor, but one of "our" justices might have rejected it due to timing and strategy concerns--holding out hope that a new Democratic president will appoint justices who protect rights perhaps?

      •  One could hope. n/t (0+ / 0-)

        The presidency is now a cross between a popularity contest and a high school debate, with an encyclopedia of clichés the first prize. Saul Bellow

        by AUBoy2007 on Tue Feb 19, 2008 at 09:02:09 AM PST

        [ Parent ]

      •  Very possible (2+ / 0-)
        Recommended by:
        Rolfyboy6, AUBoy2007

        It might take another year for the Ninth Circuit to consider the issue -- the attorneys might insist upon a request for en banc consideration to delay the matter further.  Old people have this nasty tendency to die, and there are four justices over seventy on the Court.

      •  Probably thinking they didn't have 5 votes... (0+ / 0-)

        but not necessarily thinking that a Dem president can change that.

        The most likely retirements during the next presidential term are Justices Stevens and Ginsburg, and if they retire, the best case scenario is that a Democratic senator replaces them with like-minded justices and the Court's "balance" stays roughly the same.

        Justices Scalia and Kennedy are both in their early 70s, but the three newer members of the Court's far-right bloc, Thomas, Roberts, and Alito, are all in their 50s and unlikely to retire in any of the next few presidential terms.

        So this is how liberty dies -- with thunderous applause.

        by MJB on Tue Feb 19, 2008 at 09:06:15 AM PST

        [ Parent ]

        •  Roberts might end up taking a public sector job (1+ / 0-)
          Recommended by:
          dallasdave

          He seems to really miss the money.

          Thomas probably couldn't even get a job that wasn't purely a nameplate if he were out in the marketplace.

          •  On the other hand... (0+ / 0-)

            Being an extreme-conservative, black, ex-supreme court justice could definetly get you a good nameplate-type job at any number of conservative lobbying firms.  

            And plenty of money on the lecture circuit, if Thomas were inclined to speak.

            They who would give up an essential liberty for temporary security, deserve neither liberty or security. ~Benjamin Franklin

            by TehWondahkitty on Tue Feb 19, 2008 at 09:26:59 AM PST

            [ Parent ]

            •  Funny (0+ / 0-)

              "If Thomas were inclined to speak"

              What is so terrible about Thomas is that he makes up his mind and does not say a dang thing in the Court.  He almost never asks a question.  He never lets his mind get cnaged by facts and argument, I guess.  Like Bush, he believes the same thing on Wednesday that he did Monday--and that is regardless of what haoppens on Tuesday.

      •  The fact that there are "our" and... (0+ / 0-)

        ..."their" justices only goes to show how fundamentally broken things are.

    •  You're correct (2+ / 0-)
      Recommended by:
      The Maven, AUBoy2007

      Problem is, only two people even see most of the petitions for cert.

      If the Court deals with this at all, they will wait to see if the Ninth Circuit comes out differently.  If there is a circuit split, they will take the case.

      •  I feel like them taking the case right now (3+ / 0-)
        Recommended by:
        The Maven, dallasdave, JML9999

        would be a bad thing.

        Maybe it will be better if they don't issue a definitive ruling, because it could be a really awful one.

        The presidency is now a cross between a popularity contest and a high school debate, with an encyclopedia of clichés the first prize. Saul Bellow

        by AUBoy2007 on Tue Feb 19, 2008 at 09:03:36 AM PST

        [ Parent ]

        •  It Almost Certainly Would Have Been (2+ / 0-)
          Recommended by:
          AUBoy2007, dallasdave

          Had the Supreme Court taken up ACLU v. NSA, the Ninth Circuit appeal in Hepting v. AT&T would almost assuredly have been put on hold until SCOTUS issued its ruling (as I theorized last August), and given the set of facts from this matter, the likelihood of eventual victory on the merits would have been slim.

          At least this way, with today's denial, there is no binding precedent on the Ninth Circuit, so that decision may yet be in our favor.

          Can you smell the Constitution burning?

          by The Maven on Tue Feb 19, 2008 at 09:53:06 AM PST

          [ Parent ]

    •  Yes (4+ / 0-)
      Recommended by:
      TexDem, Marc in KS, AUBoy2007, JML9999

      corrected. Need more coffee.

      •  Hey McJoan... (0+ / 0-)

        ..great work as always.  Thank you for all that you have done to keep this issue front and center.

        If we can keep the pressure on the House, we may win this.  I think we also should get an independent campaign going to protect our rights over the long term.

        PATRIOT I+II, MCA, FISA CAPITULATION, NOW TORTURE. YOUR COUNTRY IS SLOWLY BEING DISMANTLED. WHAT R U GONNA DO ABOUT IT?

        by maxschell on Tue Feb 19, 2008 at 12:11:55 PM PST

        [ Parent ]

        •  Ditto. mcjoan keeps this elevatd while candidates (0+ / 0-)

          completely ignore it.

          I still feel it is the most significant constitutional abuse in the history of the United States.

          And, i will add here again, I believe Feinstein has been so pro-immunity for telecoms because she was very likely briefed on this program between 2001 and 2006 -- and gave it her approval.

          What is the likelihood that the SBC/ATT bldg at 611 Folsom Street in downtown San Francisco, where this wholesale wiretapping was carried out -- and is still being carried out today, was completely off DiFI's radar, when DiFi's San Francisco Senate office is merely 9 blocks away ? ... With DiFi being a former Mayor of SF before she became a multi-term US Senator sitting on significant committees like the Senate Judiciary Committee, is it even remotely plausible that she would have had no knowledge of the wiretapping being conducted 9 blocks away from her Senate Offices in her city of residence?

           title=

          .

           title=

          _ the next distraction >> *

          by rhfactor on Tue Feb 19, 2008 at 12:58:08 PM PST

          [ Parent ]

          •  Nice map. (0+ / 0-)

            I'm sure she knows and they know she knows, and they know other things that she knows too.

            I'm also interested in the SBC (TX based) takeover of PacBell and then the SBC Yahoo! partnership and then the swallowing up of SBC by AT&T (which of course brought us to where we are).

            Have you read any analysis of these mergers?

            PATRIOT I+II, MCA, FISA CAPITULATION, NOW TORTURE. YOUR COUNTRY IS SLOWLY BEING DISMANTLED. WHAT R U GONNA DO ABOUT IT?

            by maxschell on Tue Feb 19, 2008 at 01:58:08 PM PST

            [ Parent ]

            •  I have not read any analysis lately, but the (0+ / 0-)

              "reconstitution" of the old dismembered AT&T into the robocop New AT&T is akin to the threat of Iraq "reconstituting its nuclear weapons program".

              How this merger was allowed to be re-assembled is beyond me -- yet another example of all the power-aggregation going on in the background (though in broad daylight) as the Bush Admin killed off freedom after freedom in America, using 9/11 as his catalyst.

              I have more pedestrian and selfish reasons for despising this "New AT&T". The new baseball ballpark built in San Francisco seven or eight years ago was called "PacBell Park" ... which, though it had the corporate naming rights kind of modern day necessity, the park itself was built to human scale, and it was very quickly adopted by SF locals as "PacBell Park".

              Then, a few years later, SBC buys PacBell and they rename and re-sign the park SBC Park -- I never called it that.  (Street signs and freeway signs all had to be changed as well). But most people still just called it PacBell Park, ignoring the ugly name branding of SBC.

              And then SBC acquires AT&T, and rebrands SBC as "the new AT&T", recognizing the liability of a no-name brand identity of something called SBC. ANd yes, they renamed the park "AT&T Park", and chnaged all the signage yet again. And I still call it PacBell park.. I wonder how many San Franciscans still do, or how many call it AT&T Park.

              My understanding is that after SBC launched the "New AT&T", the last piece of the old MaBell puzzle was Southeastern Bell... I remember this acqusition being challenged, properly so, for anti-trust violations... and I think this was when Super Role Model Colin Powell's son was head of FCC... But like so many other things that fell off  the radar of America due to the endless string of BushCo Scandals and Unitary Executive grabs hogging all the air, poof, the opposition vanished and suddenly Southeastern Bell was absorbed into the New At&T, returning it into a monolithic national telecommunications company.

              Your questions are good ones... No, not just good, critical ones. because this spying program was already in effect at time of 9/11, right? ... So with SBC San Francisco digital fiber hub tappping inot the entire trunk line of telecommunications for the entire nation in 2001, I suppose one could hazard a guess that in the reconsolidation of the former Baby Bells back into the unassaultable Robocop AT&T, digital lines that had been segregated when operating as competing telco companies, all reconnected with the national-reach of the New At&T.

              Once again, Pelosi -- the U.S. Congressperson for that District, in offcie this whole time while these regulatory matters were being considered (her office is about 20 blocks further away to SBC bldg), and Feinstein in office this whole time.

              And lah-dee-dah, neither knew of this program until the NYT disclosed it? Yeah, makes perfect sense. The two San Francisco Bush Democrats, one of whom has been solidly in the camp of "RETROACTIVE IMMUNITY for ATT", the other? We'll see, won;'t we. My bet is nancy's been wokring hard behind the scenes to ensure the House passes retroactive immunity -- but she'll have cover to speak out against it.

              They're both dirty and up to their necks in this warrantless wiretapping of every American phone call and email and web browser request.

              _ the next distraction >> *

              by rhfactor on Tue Feb 19, 2008 at 02:35:36 PM PST

              [ Parent ]

    •  Queery (1+ / 0-)
      Recommended by:
      anotherdemocrat

      Could a Canadian citizen sue a US telecom for violating their civil rights under Canadian law? It stands to reason that a call from Canada to the US would be monitored, once it has been established that the Canadian's call was monitored the US citizen on the other end has proof that their civil rights were violated. Or even if the call was initiated in the US, the Canadian recipient should still have an argument.

      Am I off the mark? Is this a viable way around this catch-22? Let the courts in Canada open the door.

      •  I don't know Canadian law. (2+ / 0-)
        Recommended by:
        TexDem, donnamarie

        And I'm not sure how the Canadian court gets jurisdiction over the company.

        The presidency is now a cross between a popularity contest and a high school debate, with an encyclopedia of clichés the first prize. Saul Bellow

        by AUBoy2007 on Tue Feb 19, 2008 at 09:34:20 AM PST

        [ Parent ]

        •  Treaties? (1+ / 0-)
          Recommended by:
          donnamarie

          What do our trade and other treaties have to say on this?

          I'm just trying ti think of a way around the Bush Administration's roadblocks.
           
          It seems to me that a Canadian citizen would have standing in Canada to sue a US telecom for allowing the violation of their civil rights under some language of existing treaties.
           
          I would just like to see a serious discussion of this with our Canadian brothers and the Canadian legal community.

      •  standing (2+ / 0-)
        Recommended by:
        TexDem, donnamarie

        I don't see why that's even necessary. We know from that whistleblower guy that they are spying on everyone. We all have standing to sue. If the constitution guarantees freedom from unlawful search and seizure, and they are spying on me for no good reason and without a warrant, than my civil rights are being violated. It seems pretty fucking simple to me.

        miasmo.com If you're not a liberal, you're a dick.

        by miasmo on Tue Feb 19, 2008 at 09:48:20 AM PST

        [ Parent ]

  •  All Animals Are Equal But (8+ / 0-)

    Some Are More Equal Than Others.

    Nothing to see here, folks.  Move along.

  •  We always seem to be (3+ / 0-)

    right back where we started (or much, much worse) with the Bush administration.

    Funny how it always works out that way.

  •  It's "standing." (4+ / 0-)

    Sheesh.  These crooks have the system so thoroughly gamed there's vanishingly small chance that they'll ever be brought to account for their crimes.

    They're smart, but evil.  That's a really bad combination.

    Je suis inondé de déesses

    by Marc in KS on Tue Feb 19, 2008 at 09:01:32 AM PST

    •  Standing is the dues ex machina (3+ / 0-)
      Recommended by:
      Marc in KS, AUBoy2007, Eireknight

      for the stripping of our civil liberties.  There is another appeal in the Court's queue challenging the courts' practice of issuing designer law applicable to one and only one set of litigants.

      The good folks at knowyourcourts.comdone a lot of work on this (full disclosure: yes, I am a regular contributor).

      •  Getting close to game, set, match? (2+ / 0-)
        Recommended by:
        stephdray, Eireknight

        If the Government can't be sued because of lack of standing, why isn't there going to be a similar lack of standing in the suits against the telecoms?

        We should be glad that the SCOTUS didn't take the case and explicitly rule that there wasn't standing.  Such a ruling could well kill the telecom suits.

        "Unseen, in the background, Fate was quietly slipping the lead into the boxing glove." P.G. Wodehouse

        by gsbadj on Tue Feb 19, 2008 at 09:18:13 AM PST

        [ Parent ]

    •  What about Roe v. Wade? (2+ / 0-)
      Recommended by:
      Marc in KS, Eireknight

      IANAL (this will become obvious).

      Roe was not the plaintiffs real name. I conclude that the actual plaintiff does not have to be named in the suit, and be given "standing" for the SOTUS to hear the suit.

      In the Wilson's civil suit there are 12- 20 (not sure exactly) John Does, to be named in the process of discovery.  

      Is it possible to get a "John Doe"  wire tap suit going?

      Capital punishment is the result of the mind-set that governments may kill without the presence of imminent threat, for a theoretical benefit to society. Sarge

      by sailmaker on Tue Feb 19, 2008 at 09:40:02 AM PST

      [ Parent ]

      •  But it was a real person, (1+ / 0-)
        Recommended by:
        sailmaker

        and she brought suit because she made the case that she had been individually harmed.

        But the government won't even say who they spied on.  We know they did it.  We know they did it for about 5 years.  So we know that they violated rights.

        But whose?  There's the rub.  Unless the government shows who they spied on, no one can claim harm, and thus no one has standing.

        But as soon as a bit of illegally-obtained information is used by the government, then it all comes tumbling down.  I think this is why they stopped it: not because they were under pressure from the public, but rather because they realized they were all looking at jail time as soon as any of that information came out.

        Je suis inondé de déesses

        by Marc in KS on Tue Feb 19, 2008 at 09:56:13 AM PST

        [ Parent ]

  •  Great (3+ / 0-)
    Recommended by:
    greeseyparrot, dallasdave, Eireknight

    This court is plainly broken. The judicial branch is so crooked after years of being stacked with anti-constitutional nutters.

    On the slim chance we succeed in getting supermajorities in congress we should really start campaigning for impeachment hearings against these worst offenders. I consider this kind of thing to be a derliction of duty... "no comment" even?!? They don't even have the balls to try justifying it.

    •  I don't think, in this case, (2+ / 0-)
      Recommended by:
      Gryn, stephdray

      it's all about the court.  There's a long history of plaintiffs having to show damages.

      It's the White House and this evil administration that prevents plaintiffs from being able to show damage.  They just claim "state secrets!" and you can never show what they've done to you.  Even the case in which the plaintiffs tried to claim damage in that the fact of the warrantless wiretapping "chilled" conversations between client and attorney are getting spanked down because they cannot show exactly how their intercourse has been affected.

      It's classic, and evil.  You can't sue me unless you show that I've hurt you, but you can't show that I've hurt you because I won't show you.

      Je suis inondé de déesses

      by Marc in KS on Tue Feb 19, 2008 at 09:05:05 AM PST

      [ Parent ]

      •  Until I arrest you (2+ / 0-)
        Recommended by:
        Gryn, snoopydawg

        and cart you off to a secret detention facility with no access to counsel.

        "The great lie of democracy, its essential paradox, is that democracy is first to be sacrificed when its security is at risk." --Ian McDonald

        by Geenius at Wrok on Tue Feb 19, 2008 at 09:06:32 AM PST

        [ Parent ]

      •  Yeah (4+ / 0-)

        Where the hell did government get the right to "state secrets" privilege anyways? Or, for that matter "signing statements", "executive privilege", "enhanced interrogations", etc... I used to believe that the courts would put a stop this to this make believe crap.

        We seem to have no real constitution anymore. It's all Calvinball, all the time.

      •  Even if you knew.. (0+ / 0-)

        what is the damage?

        •  Injuries to constitutional rights can be (4+ / 0-)
          Recommended by:
          Gryn, gsbadj, greeseyparrot, sailmaker

          vindicated in court even in the absence of damages.  Carey v. Piphus, 435 U.S. 247 (1978).

          •  But.. (0+ / 0-)

            and I'm not being a smart-ass here.. I'm truly interested.

            But, what if a warrant was legally obtained?  Does someone have "damages" if they were tapped and nothing came of it?

            How does this work in courts? Can you sue if a legal warrant provides no evidence against you?

            •  An illegal search is violative of the Fourth (2+ / 0-)
              Recommended by:
              marina, snoopydawg

              Amendment.  Irrespective of whether they find your recipe for a killer margarita or steamy love letters to Diane Feinstein, they had no business going there.  You have suffered damages, as it also constrains your freedom of speech (chilling your speech, for fear of official retaliation).

              That's how it is supposed to work in theory.  In the Bush regime, law has long since gone out the window.  Republicans and Democrats alike are both appalled, but they have Stinger missiles and you don't.

          •  The problem is that no one (1+ / 0-)
            Recommended by:
            marina

            (apparently) can show that their rights have been violated.  In the abstract, the mere presence of this program would be a violation of the law, but someone has to show that they were targeted.  I think that's the problem: the government will not say who has (or say who has not) been been illegally spied upon.

            So right: you don't have to show that what they learned hurt you because the fact that they spied on you at all is a violation.  But the government has simply claimed that they cannot tell the courts who has or hasn't been listened in on because it's a secret.

            Je suis inondé de déesses

            by Marc in KS on Tue Feb 19, 2008 at 09:53:35 AM PST

            [ Parent ]

        •  The sick part... (2+ / 0-)
          Recommended by:
          Gryn, Marc in KS

          ... is that they seem to think that there's no harm in having your phones or emails illegally listened to.  

          After all, if you're law-abiding, you have nothing to hide.  

          And if you're NOT law-abiding, well, this is war-time and you have no rights in war-time.

          "Unseen, in the background, Fate was quietly slipping the lead into the boxing glove." P.G. Wodehouse

          by gsbadj on Tue Feb 19, 2008 at 09:21:43 AM PST

          [ Parent ]

    •  I've blogged on this, and (3+ / 0-)
      Recommended by:
      Gryn, greeseyparrot, BehereBenow

      there actually is a remedy that we can avail ourselves of -- at least in theory.

      I'd love it if some folks would turn their attention to this, and develop the possibilities a little further -- hopefully, this will serve as a catalyst.

  •  Wow. (1+ / 0-)
    Recommended by:
    snoopydawg

    Just . . . wow.

    So much complacency, so little outrage.

    So little time left to rescue American democracy from its captors.

    "The great lie of democracy, its essential paradox, is that democracy is first to be sacrificed when its security is at risk." --Ian McDonald

    by Geenius at Wrok on Tue Feb 19, 2008 at 09:01:57 AM PST

  •  How much dirt can you sweep under a rug?!? (5+ / 0-)

    Dudehisattva... <div style="color: #0000a0;">"Generosity, Ethics, Patience, Effort, Concentration, and Wisdom"&l

    by Dood Abides on Tue Feb 19, 2008 at 09:02:11 AM PST

  •  McJoan -- please correct a mistake!! (0+ / 0-)

    Only four justices are needed to grant cert., i.e., to accept the case for review on the merits.  Not five.

  •  There is one thing that trumps the Constitution: (0+ / 0-)

    the fantastical conservative worldview.  God Bless America.

    Seriously, though, it is not uncommon for SCOTUS to refuse to review hot-button issues like this.  I'm not saying it's right, just common.

    All the war-propaganda, all the screaming and lies and hatred, comes invariably from people who are not fighting. - George Orwell

    by Five of Diamonds on Tue Feb 19, 2008 at 09:03:25 AM PST

  •  Someday we may hear that this eavesdropping was (4+ / 0-)

    part of a grand attempt to cage democratic voters. I can't think that just plain incompetence or the pointless desire to snoop on people were the only reasons. Likewise, there have been many other instances of making a point about the all-powerful executive.

  •  Why not an injunction? (0+ / 0-)

    Will some legal eagle out here answer this?
    Why not seek an injunction against their wiretapping me -- for instance -- withnout going through FISA?
    Then I wouldn't have to prove that they were doing it. I am, of course, only using myself as an example. I would be a poor candidate for such a lawsuit.

    The US has spent twice the amount in real dollars rebuilding Iraq than we spent rebuilding Japan after WWII. -- Vanity Fair

    by Frank Palmer on Tue Feb 19, 2008 at 09:05:28 AM PST

  •  Thats one hell of a catch-22 (3+ / 0-)
    Recommended by:
    greeseyparrot, marina, Eireknight

    "There was only one catch and that was Catch-22, which specified that a concern for one's own safety in the face of dangers that were real and immediate was the process of a rational mind. Orr was crazy and could be grounded. All he had to do was ask; and as soon as he did, he would no longer be crazy and would have to fly more missions. Orr would be crazy to fly more missions and sane if he didn't, but if he was sane he had to fly them. If he flew them he was crazy and didn't have to; but if he didn't want to he was sane and had to. Yossarian was moved very deeply by the absolute simplicity of this clause of Catch-22 and let out a respectful whistle."
    "That's some catch, that catch-22," he observed.
    "It's the best there is," Doc Daneeka agreed.

    This ruling seems odd to me. I really don't get it. If (not much of an if) our rights were violated by this administration we have a right to know about. Truth is not a owned property for the Government to hand out as it pleases.

    You know, I rather like this God fellow. He's very theatrical. A little pestilence here, a plague there... Omnipotence...got to get me some of that.

    by ryan81 on Tue Feb 19, 2008 at 09:06:21 AM PST

  •  We know of some people that have been tapped (1+ / 0-)
    Recommended by:
    Eireknight

    We know this because the Feds handed over accidentally a record of  those calls. The problem is the court ordered it returned, uncopied. That is the case we have to hang our hats on, and pray.

    "a state that tortures is always a state of hypocrites." John Locke

    by SmileySam on Tue Feb 19, 2008 at 09:06:40 AM PST

    •  Scratch the Above, We're Screwed (2+ / 0-)
      Recommended by:
      BehereBenow, Eireknight

      The 9th U.S. Circuit Court of Appeals last year ruled against an Islamic charity that also challenged program, concluding that a key piece of evidence is protected as a state secret.

      In that case, the Oregon-based U.S. arm of the Al-Haramain Islamic Foundation alleged the National Security Agency illegally listened to its calls. The charity had wanted to introduce as evidence a top-secret call log it received mistakenly from the Treasury Department.

      "a state that tortures is always a state of hypocrites." John Locke

      by SmileySam on Tue Feb 19, 2008 at 09:26:21 AM PST

      [ Parent ]

  •  Just to Plan Ahead... (0+ / 0-)

    ...hopefully, the House will stand firm on nixing telecom amnesty and the lawsuits will be able to proceed.

    But let's assume the worst-case scenario, and either the House buckles or we get screwed in conference committee.

    What is our Plan B? Is there one?

  •  You can't have a congressional investigation with (0+ / 0-)

    a dem majority?

  •  Wingnuts wanted to pack the SCOTUS (4+ / 0-)
    Recommended by:
    SecondComing, coigue, AUBoy2007, JeffW

    and have done so successfully.

    This would be a payoff of doing that.

    God these people hate my country.

    There's no money for your issue so long as we're squandering $50 billion a year on the DrugWar. Ben Masel

    by xxdr zombiexx on Tue Feb 19, 2008 at 09:08:30 AM PST

  •  One of the Best Things about a Dem President (1+ / 0-)
    Recommended by:
    AUBoy2007

    Is that we'll finally have an opposition party with balls.

    Does anyone think that the Repubs, once there is a Democratic Administration in place, are going to be deterred from savagely attacking a program which opens up the possibility of politically motivated wiretappings and e-mail intercepts by the Dems?  

    LOL - we're going to suddenly see huge number of fervent civil libertarians in both houses of congress demanding oversight.

    And I, for one, will join them.  Even if I have to ally with Repubs, we'll need to gut this wolf before it eats us all.

  •  Thanks To All Our Spineless Dems (4+ / 0-)

    who voted to confirm Alito and Roberts.

    Great job, people.

    Gore to Richardson to Edwards to ?

    by creeper on Tue Feb 19, 2008 at 09:09:29 AM PST

  •  The number of SC judges has varied (2+ / 0-)
    Recommended by:
    Geenius at Wrok, SecondComing

    greatly over the life of the nation, from 6 to 15. It is fixed by Congress.

    Although FDR had trouble getting Congress to change the number 70 years ago, other Presidents at other times didn't.

    Can we afford to stay with this Supreme Court--anti-American people, anti-Bill of Rights, anti-intent of the Constitution--for the next decade or so, waiting for the cultists sitting there to die off, whining "we can't change it--FDR didn't"?

    Or shall we make a move that is in our interests?

    Until we break the corporate virtual monopoly on what we hear and see, we keep losing, don't matter what we do.

    by Jim P on Tue Feb 19, 2008 at 09:09:32 AM PST

    •  The move hurt FDR a lot. (1+ / 0-)
      Recommended by:
      scott5js

      Let's not go there.

      It's nothing more than a self-serving move that will be seen for what it is.

      The presidency is now a cross between a popularity contest and a high school debate, with an encyclopedia of clichés the first prize. Saul Bellow

      by AUBoy2007 on Tue Feb 19, 2008 at 09:12:28 AM PST

      [ Parent ]

      •  So keeping the current makeup (0+ / 0-)

        won't hurt America enough to matter?

        FDR got re-elected 3 times after that move. Didn't hurt him in any way that matters, except he was a politician who lost a battle.

        What exactly, beyond some dissing and pissing off of the Conservative establishment, was the damage to FDR?

        But we should just stay with this anti-American situation today because a politician failed to get his aim 70 years ago.

        Until we break the corporate virtual monopoly on what we hear and see, we keep losing, don't matter what we do.

        by Jim P on Tue Feb 19, 2008 at 09:26:45 AM PST

        [ Parent ]

        •  Look manipulating the court's numbers (1+ / 0-)
          Recommended by:
          nrafter530

          to achieve a desired solution is a partisan, self-serving argument that cuts down the Supreme Court as a co-equal branch.  Any time they making a ruling the President didn't like, he could propose a change in their numbers.

          FRD presented this plan in 1937, after his sweeping victory in 1936.  He lost in the senate by a vote of 70-20.  Which Presidential candidate can pull this off?  None of them.

          The presidency is now a cross between a popularity contest and a high school debate, with an encyclopedia of clichés the first prize. Saul Bellow

          by AUBoy2007 on Tue Feb 19, 2008 at 09:32:48 AM PST

          [ Parent ]

          •  Worse Yet (1+ / 0-)
            Recommended by:
            AUBoy2007

            Roosevelt lost in a Democratic Senate, the most lopsided with history; Dems had 73 Senators. They ended up losing five seats in the next election.

            •  WTF does any of this have to do (0+ / 0-)

              with today's situation?

              We should not try to fix something that is wrong today, because someone couldn't do it 70 years ago?

              Every single detail of the political environment is different between then and now.

              Until we break the corporate virtual monopoly on what we hear and see, we keep losing, don't matter what we do.

              by Jim P on Tue Feb 19, 2008 at 09:43:32 AM PST

              [ Parent ]

              •  Because it's seen as a power grab (1+ / 0-)
                Recommended by:
                AUBoy2007

                it was in 1937 and it will be today.

                Roosevelt also was trying to fix a problem and pack the court with judges who will help him out. It got rejected BY HIS OWN PARTY because it was widly unpopular.

                It will again too.

                •  The Power has already been grabbed. (0+ / 0-)

                  This is a fix for the current unbalanced situation, and it's quite possible it would be seen as such today. You've got Scalia saying there is no right to privacy, there is no prohibition on torture until after you are convicted, that habeas corpus is not a right.... I feel pretty certain that NO SC judge of FDRs time held those positions.

                  You think the American people want Scalia Justice?

                  We are in a completely different world than FDR was in 1937. You cannot possibly guarantee how people would see it today. This is an entirely different political environment, a hugely disrespected Supreme Court, nothing at all even vaguely like the situation FDR faced.

                  The only similarity whatsoever is the topic "number of justices."  

                  Or is it your position we should simply lay down and take another decade or two of destruction of the rule of law and simple Justice, because of FDR's unique situation back in my grandfather's day?

                  Until we break the corporate virtual monopoly on what we hear and see, we keep losing, don't matter what we do.

                  by Jim P on Tue Feb 19, 2008 at 09:57:04 AM PST

                  [ Parent ]

                  •  Different positions, differnt times, but the same (0+ / 0-)

                    concept.

                    FDR's New Deal was passed in the Congress and supported by the people and struck down by the Supreme Court.  You think that just because the issues are different (privacy verse perceived economic livelihood) the result will be any different?

                    The presidency is now a cross between a popularity contest and a high school debate, with an encyclopedia of clichés the first prize. Saul Bellow

                    by AUBoy2007 on Tue Feb 19, 2008 at 09:59:50 AM PST

                    [ Parent ]

                    •  So do you think because the issues are different (0+ / 0-)

                      we are guaranteed the same result as 70 years ago?

                      This seems to me the Democrats "well we sure aren't going to win so why try" position that has led to disaster after disaster (Iraq war, gutting the Bill of Rights, Roberts, Alito, etc)

                      We need to be opening the Overton window, not shutting down possibilities.

                      Think of it this way: Scalia is a known member of Opus Dei, and it's thought that Thomas and Alito are as well. Opus Dei requires an oath of complete subservience to the Pope. The Pope has been making proclamations that you lose the right to Communion if you don't make political decisions based on Church doctrine.

                      Roberts & Kennedy are Roman Catholic. So, it might up at least 3 justices holding a loyalty greater than that their oath of office demands. Maybe the majority.

                      It's possible, even likely that we have a fanatical religious cult making decisions about what is just under the law. Do you really think this is tolerable? That the American people support this? That this is identical with FDR (then perceived as) threatening the ruling class' wealth?

                      Or are we just to wait around for another 10-15-20 years until we get a chance to maybe put in Justices that will not be actively destroying America? If you respond, I'd like to hear this point addressed more than any other. After all, this is not the days of FDR.

                      Until we break the corporate virtual monopoly on what we hear and see, we keep losing, don't matter what we do.

                      by Jim P on Tue Feb 19, 2008 at 11:33:26 AM PST

                      [ Parent ]

                      •  First off, (0+ / 0-)

                        I'm a Catholic, so your argument holds no weight with me.  I don't believe Catholics will blindly follow the Pope - see, Kerry, John.

                        This seems to me the Democrats "well we sure aren't going to win so why try" position that has led to disaster after disaster ...

                        True.  But this isn't "we aren't sure".  We're damn sure.  That's the FDR comparison.  No.  I don't believe enough has changed between then and now that will inspire the masses to raise up to convince this Congress to do what FDR couldn't in a considerably more favorable environment.  Period.

                        It's possible, even likely that we have a fanatical religious cult making decisions about what is just under the law. Do you really think this is tolerable? That the American people support this? That this is identical with FDR (then perceived as) threatening the ruling class' wealth?

                        Prove to me that the American believe the Supreme Court is in the grips of a fanatical religious cult.  The American people don't view the Supreme Court with that kind of lens.  Sure, some people don't like it.  I frequently disagree with the Court.  But I don't think it's some sort of tyrannical body.  There wasn't get mass calls to change the Supreme Court after 2000 (and even if there was did, nothing  came of it.

                        Or are we just to wait around for another 10-15-20 years until we get a chance to maybe put in Justices that will not be actively destroying America? If you respond, I'd like to hear this point addressed more than any other. After all, this is not the days of FDR.

                        There is no other option but to wait to change the composition of the Court.  Give me 50 Senators who will go along with this plan.  Show me the massive push to fundamentally change the Supreme Court.  You believe there's sentiment that's not there.  I'm arguing that the numbers are not there, therefore, it will only hurt because it will be perceived (and spun) as an attempt to change the rules to get a more favorable result.  And what's to stop the other side from doing the same thing next time?  You open the flood gates.  It's a bad idea.  Period.

                        The presidency is now a cross between a popularity contest and a high school debate, with an encyclopedia of clichés the first prize. Saul Bellow

                        by AUBoy2007 on Tue Feb 19, 2008 at 01:13:37 PM PST

                        [ Parent ]

                  •  I'm all for packing the court (1+ / 0-)
                    Recommended by:
                    AUBoy2007

                    but it's unfeasable. We're talking about expanding the court that hasn't been expanded in anyone's lifetime, getting a majority of Congress behind it, and who's appointing these judges anyway? Bush? Our fine Democratic President, who is sure to get elected after McCain drives home the "liberals want more activist judges" meme for the next eight months? Who is going to oppose McCain or Bush's justices? the Senate? Even our progressive heroes Dodd and Feingold let Roberts through, Obama and Clinton didn't.

                    Do Americans want Scalia Justice? If they don't, they'll let us know in November.

                    FWIW, we've had some terrible SCOTUS justices before; Plessy v. Ferguson? Dred Scott?

                    •  Today it's unfeasible. (0+ / 0-)

                      There's something called the Overton window. I don't know how much experience you've had in bargaining, but in most of the world you demand absolutely everything plus more as your opening position, and then compromise from there.

                      The Democratic mind (and policy and laws) has been crippled by a pre-negotiation capitulation strategy that has not served America well, not at all.

                      None of the Justices we've had before have said in public that privacy is not a right, habeas corpus is not a right, not being tortured is a right. Not one, not in FDR's day, not in Millard Fillmore's day. We have lunatic radicals running our Court System. Do you deny it?

                      Again, so what's the plan: lay down and get fucked?

                      Until we break the corporate virtual monopoly on what we hear and see, we keep losing, don't matter what we do.

                      by Jim P on Tue Feb 19, 2008 at 11:39:02 AM PST

                      [ Parent ]

                      •  You still don't explain (0+ / 0-)

                        how Democrats are expected to pack the court with liberal justices right away.

                        You're reiterating what is wrong over and over again, that is great, we all know there's a problem, but you don't give answers or how to go about getting them.

              •  You don't learn from history, you're condemed to (0+ / 0-)

                repeat it.

                We cannot even pass a bill in the Sneate to not give amnesty to the telecoms.

                You really think we'll be able to pack the court?  It's very illustrative that the VERY POPULAR FDR lost in a 73(d)-27(r) Senate by a margin of 70-20.  

                Forget how it will look.  Just give me the names of 50/51 Senators who will support this.

                The presidency is now a cross between a popularity contest and a high school debate, with an encyclopedia of clichés the first prize. Saul Bellow

                by AUBoy2007 on Tue Feb 19, 2008 at 09:57:23 AM PST

                [ Parent ]

          •  The SC is ALREADY a partisan (0+ / 0-)

            packed branch. It's not manipulating, it's within the inherent structure of our government. The number of judges is fixed by the Congress.

            Are you saying that we should cede the co-equal status of Congress to the right wing cultists that have seized the Court?

            And to compare the situation today to FDR--when he was trying to pack the court to get through his social welfare and work programs in a time when the Press and the political establishment was in a frenzy over the Communist menace and furious that FDR was selling out his class--is mixing apples and giraffes.

            This is a different thing. Today, the court is packed with right wing extremists who DESPISE American law and tradition. Why should we accept this?

            Until we break the corporate virtual monopoly on what we hear and see, we keep losing, don't matter what we do.

            by Jim P on Tue Feb 19, 2008 at 09:41:44 AM PST

            [ Parent ]

      •  This is Going to Hurt (0+ / 0-)

        It's more than just a selfserving move, though it will also be that, and surely seen as that even more than it is that.

        But keeping the current court size and composition will continue to hurt, a pain that's been intolerable. Installing Bush Jr on the strength of his own father's appointees in his 12 year reign, as well as those appointed while his father was head of the RNC, and just the stacking possible because the past included longer stretches of Republicans who could install a future Republican installing his own replacements: That's all extremely damaging to the credibility and nonpartisan legitimacy of the Court, which is now in tatters.

        If the Court were larger, then single turnovers would have less impact. Since the Court now refuses quite a lot of important cases, including this one, in our increasingly litigous and politically polarized country, more justices could widen the bottleneck to be more productive. There have been only 9 judges since 1869. The demands on the Court and the diversity of the country have grown extremely since then. The 1869 population was 40M, now it's over 300M. There were 37 states and few territories, no UN or other of the many US treaty organizations, now there are 50+. If there were 30 justices, or 50, the Court would better represent the people and the laws it's responsible for judging. And no single presidency could have as much power to swing the Court so much ideologically, rather than merely according to justice.

        What's really selfserving is keeping the Court so small. It preserves the vast power of each Justice. It lets lawyers more narrowly target Justices as "known quantities". The confinement into the party duopoly that appointed them and looks to them to resolve frequent political disputes lets parties win "justice" because of party loyalty rather than justice itself.

        Expanding the court would be painful. But leaving its power undiluted in so few Justices is even more painful. And we've all had enough pain like that for a lifetime.

        "When the going gets weird, the weird turn pro." - HST

        by DocGonzo on Tue Feb 19, 2008 at 09:59:27 AM PST

        [ Parent ]

    •  What vote do you have to get from congress (0+ / 0-)

      to change that number? Is it a simple majority? or do you need a super majority? I would assume the latter but I am not sure.

      You know, I rather like this God fellow. He's very theatrical. A little pestilence here, a plague there... Omnipotence...got to get me some of that.

      by ryan81 on Tue Feb 19, 2008 at 09:12:28 AM PST

      [ Parent ]

  •  It's a shame (3+ / 0-)
    Recommended by:
    Geenius at Wrok, AUBoy2007, JeffW

    ...the president systematically broke that law over a period of more than five years. It’s very disturbing that the president’s actions will not be reviewed by the Supreme Court.

    It's a shame the Founders didn't have the foresight to set up a third branch of government, one with powers to maybe investigate the actions of the president and maybe even somehow remove him from office.  

    Oh well.  They were only human, after all...  

    "The Romans brought on their own demise, but it took them centuries. Bush has finished America in a mere 7 years." -- Paul Craig Roberts

    by Roddy McCorley on Tue Feb 19, 2008 at 09:11:16 AM PST

    •  Actually, the Framers set up a fourth branch (2+ / 0-)
      Recommended by:
      DocGonzo, JeffW

      US.  In England, anyone could initiate a private criminal prosecution.  I maintain that we didn't give up that right in our own Constitution, as there is no evidence that it was ever taken away.

      Imagine Scalia, having to read the Constitution literally to his own detriment.... :)

      •  Close, but No Executioner (0+ / 0-)

        The people might have the right to demand a court hear their "private prosecution". But the government has no power created by the Constitution to hear it or conduct such a trial.

        You can sue Bush in your livingroom or public park, but the only trials the court has the power to try in the public courthouse are those coming through the ordinary calendar.

        "When the going gets weird, the weird turn pro." - HST

        by DocGonzo on Tue Feb 19, 2008 at 09:40:28 AM PST

        [ Parent ]

        •  Sure, it does. (0+ / 0-)

          Show me where the authority was extinguished in the Constitution, and I'll buy off.

          You and I both know it isn't there.

          •  That's Not What I Said (0+ / 0-)

            Where in the Constitution does it say that I cannot just grab you off the street, pronounce some judgement on you, and imprison you? Yet I cannot. Because the Constitution does not say that you do have the power to do so.

            And where does the Constitution say that the court has the power to hear such prosecutions in its public offices, or decide their facts, or pronounce judgements on them, or order police to enforce them? Nowhere, so there is no such power.

            Prosecuting people and enforcing the judgements is a power that doesn't exist without being created in the Constitution. Since it isn't, it doesn't.

            "When the going gets weird, the weird turn pro." - HST

            by DocGonzo on Tue Feb 19, 2008 at 10:03:04 AM PST

            [ Parent ]

            •  Do the math (0+ / 0-)

              If it is an inalienable right retained by the people -- both English precedent and the legislative history of the Bill of Rights suggest strongly that it is -- then it was either taken away by the Constitution at its inception, or it can't be taken away at all.

              All "private prosecution" entails is having a citizen substitute him/herself for the attorney general and in effect, becoming a private AG.  You still need a court and a grand jury, which the system provides.

              As for it being taken away, substantially identical provisions regarding the executive power in both the Pennsylvania and New York constitutions prove that it was not.

              •  Missing Factors (0+ / 0-)

                The problem is not in your power to go and bring a case to someone. The problem is that the courts have to be empowered to recognize your standing and authority. There is no such provision. Just as there is no such provision to recognize, say, your power to imprison someone without a court's intervention at all.

                Without the court having power created to recognize your appearance as a prosecutor, you cannot be a recognized prosecutor. Only prosecutors the court is empowered to recognize can prosecute.

                You have the power to carry packages from your neighbor's doorstep, but not the authority to pick them up from their mailbox. That's how both sides of the equation, the power of the person and the power of the state, must both be satisfied to empower any working together that affects the rights of anyone else.

                "When the going gets weird, the weird turn pro." - HST

                by DocGonzo on Tue Feb 19, 2008 at 11:23:51 AM PST

                [ Parent ]

                •  The court is empowered to do so (0+ / 0-)

                  What do you think Article III is about?

                  Back in the days of the Revolution, most criminal prosecutions were conducted by individuals.

                  •  Empowered to Recognize Individuals? (0+ / 0-)

                    Can you show me where the Constitution, or legislation under it, that establishes the power of Federal prosecutors to prosecute, also establishes that power in civilians, rather than representatives of the state?

                    "When the going gets weird, the weird turn pro." - HST

                    by DocGonzo on Tue Feb 19, 2008 at 01:07:02 PM PST

                    [ Parent ]

                    •  Can you show me where the right to marry is (0+ / 0-)

                      inalienable?  The right to have children?

                      Those are rights we had at common law.  On what legal ground can you say that the Constitution extinguished them?

                      The right to invoke the prerogative writs -- habeas corpus, mandamus, scire facias, et al. -- all existed at common law.  The Constitution can, of course, take them away ... but you have to be able to show where it actually did so.

                      •  They're Self Evident (0+ / 0-)

                        All you have to do is ask what would happen to an American government that stopped protecting people's rights to marry and have children to see that they're inalienable rights. Look at how gay people's rights to marry, suppressed for so long, are a cause celebre among anyone who actually believes in rights. Consider that homosexuals have had the right to even live openly for only a generation or two, that they've had rights to equal protection from firing and getting beaten in the streets for only a decade or so, and already they're getting their other rights, including marriage, and have already gotten the right to adopt. Those inalienable rights are self-evident.

                        The right of a person to prosecute someone without the patronage of the state is far from self-evident. It's been unavailable for centuries, since the country was founded, despite its opening up more and more. And there is no significant group clamoring for it (no offense - your fellows are a very small group). It's no inalienable right, in either self-evidence or even any other compelling argument to find it in that class.

                        You might notice that habeas corpus is indeed in the Constitution, and not exercised by some "natural right". Because though people have the right (by free speech) to write whatever writ they please (so long as it's not seditious, threatening, slander, violating copyright, etc), but the government has power to support only those few writs that are specified in the Constitution. This civilian prosecution isn't even as fundamental as habeas corpus, and it doesn't even appear in the Constitution. It's not in nearly the same class, even if it might have been in 18th Century Britain, which ruled by tradition and royal fiat - not inalienable rights and the Constitution that instructs their protection.

                        "When the going gets weird, the weird turn pro." - HST

                        by DocGonzo on Tue Feb 19, 2008 at 06:32:07 PM PST

                        [ Parent ]

                        •  It's self-evident. Consider the alternative. (0+ / 0-)

                          Everyone has a right to the protection of the laws, and this is the only way short of retaliatory violence to achieve it.  Madison recognized it as such, and that ought to be sufficient.

                          You won't find any of the prerogative writs in there, except to the extent that habeas cannot be abridged except in those cases where you would expect it to be abridged (in times of insurrection).

                          •  We Have the Alternative (0+ / 0-)

                            For over 2 centuries, the alternative that gives us the protection of the laws is complaining to the DA who prosecutes.

                            Madison's recognition of this writ, which recognized it as custom, not right, doesn't validate it as inalienable. Madison might have written the Bill of Rights, but that doesn't make him the "Creator" mentioned in the main Constitution.

                            Again, this practice you're advocating could be installed by Constitution or perhaps other legal construct. It isn't "anti-Constitutional", as if prohibited by the Constitution (or our rights). But there's no strong argument that it's an inalienable right. The ones you've offered, like custom and Madison's approval of it as such, don't equate to inalienable rights. And I've already mentioned how "alienating" people from it has not had the kinds of effects that would happen with inalienable rights.

                            These kinds of arguments on the Web tend to eventually bore me. Every point you've tried to make has failed, yet you neither admit that nor concede. It's not the kind of debate that can be treated as anything but propaganda, because actual good faith in the results of the process is sorely lacking. I don't think debating that way is how someone working to install such a facility will do their work, so I don't think you're going to succeed. But at least it's an interesting idea, even if its reasons for adopting it aren't the compelling ones you say they are. Thanks anyway. Goodbye.

                            "When the going gets weird, the weird turn pro." - HST

                            by DocGonzo on Wed Feb 20, 2008 at 02:11:01 PM PST

                            [ Parent ]

            •  You obviously didn't visit the link, Doc. (0+ / 0-)

              I went through all of that.

              •  I Did (0+ / 0-)

                I went through it. I just disagree, as I have here.

                "When the going gets weird, the weird turn pro." - HST

                by DocGonzo on Tue Feb 19, 2008 at 11:17:29 AM PST

                [ Parent ]

                •  Again, your basis for disagreement is? (0+ / 0-)

                  In England and in all colonial governments, this was a power every citizen had.  In every other common-law country I am aware of, they still have it.  And it is an essential bulwark of liberty.

                  I can't find any place in the Constitution where this right was extinguished.  With all respect, I don't see where a limitation is affirmatively placed on courts that would prevent such complaints from being brought.

                  •  Lack of a Basis for Agreement (0+ / 0-)

                    The American government replaced the British government, in both specific terms and its basis. The American government started with zero powers of any kind, and then established new explicit powers for it, with any power not explicitly specified not existing. When people were able to demonstrate that a government power was necessary, or a person's power was necessary for the government to recognize and support with a government power, the government either created that government power under the existing Constitution or laws, or the legislature and Executive agreed to create that power.

                    So just because British people had some powers, including colonists before the American government replaced it, doesn't mean those powers were retained. Those prior powers could be presented as examples of protected rights that were consistent with the new government and its basis in rights, and if the government agreed, it could institute those powers under the new government.

                    But they didn't just carry over into the new government acting to support them just because they weren't explicitly prohibited by the Constitution. That's not how the Constitution works. There's a fine line, in that the Constitution does work that way in that rights not prohibited the people are retained by them, though however the government does not have the power to support those rights merely because that support is not prohibited. The support must be explicitly specified in the Constitution, or there is no such government power to support any right not prohibited the people.

                    Revolutions have consequences. Ours mainly meant that the government could do only what the people, through our Constitution, said it could do. If it doesn't say it can follow the directions of a civilian as prosecutor, then it can't.

                    "When the going gets weird, the weird turn pro." - HST

                    by DocGonzo on Tue Feb 19, 2008 at 01:16:49 PM PST

                    [ Parent ]

                    •  That view ignores historical reality (0+ / 0-)

                      The American government didn't start entirely from scratch.  We imported the common law lock, stock, and barrel: all the writs, procedures, and definitions.  Blackstone was the colonial American lawyer's bible.      To say that our government wrote on a clean slate is ahistorical, and even a cursory review of the Framers' writings show this to be true.

                      Why did many of the Framers -- including Madison! -- think that a Bill of Rights was unnecessary?  Because the common law was already there.

                      Revolutions have consequences. Ours mainly meant that the government could do only what the people, through our Constitution, said it could do. If it doesn't say it can follow the directions of a civilian as prosecutor, then it can't.  

                      And where does it say that only a state prosecutor can prosecute a crime?  Answer: It doesn't.  If the right in question is inalienable -- it is, after all (in Madison's words), one of "those safeguards which [the people] have been long accustomed to have interposed between them and the magistrate who exercised the sovereign power" -- the Constitution has to have taken it away for it to be taken away.  And as you know, the legislature, courts, and executive together don't have the legal right to take an inalienable right away.

                      By your own criteria, the right to initiate a private prosecution is entirely compatible with the law as it now stands.  All I would have to do is file as United States ex rel "Bouldergeist," present evidence to a grand jury under the auspices of a court, and have an indictment handed down.  I would enjoy the benefit of supervision by the AG as a matter of statutory law.    It would be like the AG hired and deputized me.

                      •  Reality (0+ / 0-)

                        "Historical reality" also means that Americans have not had that power for over 200 years. So by the same token that this "custom" (as you cite Madison himself calling it, not a "right") is not "inalienable", but is rather a privilege exercised in some countries and not others.

                        Sure, it took a while to switch the country over to new customs, laws, and an entirely new basis of power starting with nothing, and then adding only whatever the people's representatives explicitly permit. The past 200 years have replaced many customs, many carried over from British colonies, which were far from inalienable, like slavery.

                        As for where it says "only the state can prosecute a crime", that entirely misses the point of the way the government works. It would have to say "civilians can prosecute a crime" for that power to exist, so the lack of its prohibition leaves the power unformed because its also the lack of its creation.

                        AFAICT, "ex rel" is not like what you say "civilian prosecution" would be. Ex rel just lets a civilian cause a state prosecutor initiate prosecution, not let that civilian prosecute with any powers themself. And only when the relating civilian's interests are found by the state to coincide with the state's interests.

                        But maybe I'm wrong, and ex rel is the same as what you want. In which case you've already got it. So I don't know waht you want changed, if it's already available.

                        Ultimately all these arguments you're offering seem circular. Again, if you can show me where in the Constitution it gives civilians the right to prosecute people such that the state is bound to hear, judge and be compelled by those arguments to the point of coercing remedies or sentences, I'd like to see it. And if not, then all you've got is another arbitrary power that you'd like the state to add, like any other, not an inalienable right that's been suppressed by historical accident. Maybe it's even a good one, maybe even one the people could and should make the state support. But the basis on which you're pitching it does not support your request for it.

                        "When the going gets weird, the weird turn pro." - HST

                        by DocGonzo on Tue Feb 19, 2008 at 06:23:48 PM PST

                        [ Parent ]

  •  Now More Than Ever (1+ / 0-)
    Recommended by:
    nrafter530

    All the Clinton/Obama back-and-forth sniping MUST stop so we can all get on board to elect a DEMOCRAT for President.  At this point, I'm so sick of both of them and even moreso the rabid supporters who treat other democrats like the enemy, I don't care which one of them is the nominee.  See the bigger picture.  We have GOT to re-balance the Supreme Court.  So stop shooting us in the foot by treating Clinton & Obama like your enemy. The REAL enemy is the Republican dominated court!  

  •  Fishing.. (0+ / 0-)

    The courts won't let them go fishing..

    We do know that there are persons with standing to sue, we don't know who they are. One avenue for finding that out has now effectively been shut down. Another avenue--agressive Congressional investigation--is never going to happen.

    "We don't know who they are"  Why is that?  Because no quantifiable injury was done to them?  

    What are they suing for then?  With or without warrants, people were no doubt surveilled that were them deemed not to be dangerous.  Is there more harm to those without the warrants?

    Don't get me wrong, I think the warrantless taps stink.  But all this wrangling to try to get to Bush & Co. through the backdoor through civil suits is unproductive, to my mind.  Especially when you consider that Dem and Repub leaders were in on the whole thing from the beginning anyway.

    Just fix FISA and move forward and ensure that even under the cloud of another 9/11 we don't rush to give away civil rights again.

  •  Government is a fiction. (1+ / 0-)
    Recommended by:
    incompleteness

    If the State no longer operates at the behest of the People, why do we accept the legitimacy of the State?

    It is possible to contemplate extra-constitutional reponses to a government that no longer abides by its own laws and principles.

    Been wiretapped lately?

    by m00nchild on Tue Feb 19, 2008 at 09:13:05 AM PST

  •  Biggest reason of all to vote for the DEm (5+ / 0-)

    in the general.

    Whichever one is the nom.

    You cannot stand in front of progress for your country because of your fears, you must stand behind Her in spite of them.

    by coigue on Tue Feb 19, 2008 at 09:13:33 AM PST

  •  Bush's vacant aerie in Chaco ... (0+ / 0-)

    The telecommunication companies that cooperated with the Bush Administration's NSA driftnet have a reasonable argument for defense of accusations that they violated explicit privacy guarantees and due process of our Fourth Amendment: Agents of our government cited exigent circumstances, so they cooperated with assurances that the government had the right.

    The Bush Administration, however, does not have any such argument, for it openly violated FISA law and flouted its requirements for warrants.  

    For the Bush Administration to publicly complicate matters by reducing the argument for telco amnesty to grounds of exigent national security is, again, bogus, since any and all so-called eavesdropping warrants that issue from FISA compliance are renewable for one year.

    Indeed, it is the corrupt executives in the Bush Administration who need amnesty against future civil charges that may ensue after they have left the Administration. This is what happens when power-hungry despots attempt to legislate by fiat.  

    But what do they fear most?

    The underlying issue is extradition to or from the U.S. on civil or criminal charges that are not regarded as "political" in nature.

    Perhaps the heart of the matter rests in this question:  Does the Bush Administration wish to reciprocate in offering asylum to outright criminals from Paraguay?  That would be a hard argument to make for the law 'n' order security creeps in the Republican Party. But, it may be the only way that Bush will be able to rest easy and enjoy his new retreat in Chaco.

    First they ignore you, then they laugh at you, then they fight you, then you win. -Mohandas Gandhi

    by ezdidit on Tue Feb 19, 2008 at 09:15:07 AM PST

  •  Damn. nt (0+ / 0-)
  •  So the SC is pulling a Fitzgerald and punting (0+ / 0-)

    Let's face it, Libby was low hanging pardonable fruit.
    Lots and lots of powerful Democrats (not to mention Republicans) and Telco employees have lots and lots of proof.

    Perhaps a new case challenging Bush's strong hold on the Telcos should be considered.

    "We have a right to have honest football games" -Senator Arlen Specter

    by Data Mining Telecom Fascist on Tue Feb 19, 2008 at 09:17:19 AM PST

  •  Standing? (0+ / 0-)

    I have standing. I have a phone. Since the Government has been caught 'accidentally' wiretapping phones that it said it wouldn't, mine could just have as easily been one of those tapped.

    Why don't the justices (or Congress) look at the wiretap records and compare them to the plantiffs in the case?

    Of course, it's not about truth or justice. Is it?

  •  Thanks for the hard work mcjoan (2+ / 0-)
    Recommended by:
    Amayupta yo, rhutcheson

    "We have a right to have honest football games" -Senator Arlen Specter

    by Data Mining Telecom Fascist on Tue Feb 19, 2008 at 09:17:56 AM PST

  •  Strict Constitutionalists ignore the constitution (1+ / 0-)
    Recommended by:
    apostrophe

    when it suits their ideology.

    Swift Goat Pets For Truth

    by Amayupta yo on Tue Feb 19, 2008 at 09:18:09 AM PST

  •  Shocked. I'm shocked I tell you.. (0+ / 0-)

    No.

    Saddened a bit. I can't picture Alito helping anyone from the ACLU even if he hit them in a crosswalk with his limo.

    'But they'll burn ya out' The unsteady eyes dropped to the ground. "I know. They done it before" - Steinbeck

    by SecondComing on Tue Feb 19, 2008 at 09:18:21 AM PST

  •  we need an ACTUAL "injured party' (1+ / 0-)
    Recommended by:
    rhutcheson

    but the ONLY way to find an actual injured party is to go through the CIVIL COURTS...  which is exactly what 'retroactive immunity for telecoms' prevents us from doing...

    git da picture yet?

    as long as the bushies can keep civil lawsuits concerning FISA out of the courts they are safe from any REAL scrutiney re: FISA.

    the decision by the USSC to not hear the case brought by the ACLU makes it even more imperitive that we stand fast against ANY bill that contains retroactive immunity for the telecoms who, willingly, broke our laws on nothing but the say so of Bush.  If immunity is issued to the telecoms it will KILL any and all CIVIL lawsuits and it is in the civil courts that we have our last BEST chance to learn the truth about the scope of the illegal domestic warrentless spying.

    IMPEACH THE CHEERLEADER... SAVE THE WORLD! © ®

    by KnotIookin on Tue Feb 19, 2008 at 09:21:52 AM PST

    •  We have an actual injured party (0+ / 0-)

      Anyone who might have had their personal correspondence read is a proper party plaintiff.  Injuries to constitutional rights create standing even in the absence of damages.  Carey v. Piphus, 435 U.S. 247 (1978).  There are eleven more circuits in which to bring these actions.

    •  Here is the Truth....Recommended.... (0+ / 0-)

      with a Call to Action....

      Copy this and email to the Committee Chairs of the House and Senate Judiciary and Intelligence Committees. They are meeting this week to reconcile the two bills (the SSCI version with immunity and the House version without).

      All involved need to know we are watching and we know what is at stake.

      They need to know that their jobs and reputations as legislators upholding the Constitution is at Stake.

      Beware the Will o'the Wisp.A lantern that leads to the edge of the chasm is not a true light...

      by portorcliff on Tue Feb 19, 2008 at 09:48:07 AM PST

      [ Parent ]

    •  Yes! If the immunity is granted (0+ / 0-)

      the people will never know exactly what transpired and what BushCO was really up to. The BA needs all that info safely and "legally" (cough, cough) buried.
      More than ever we have to work to see that House continues to stand firm on this.
      It couldn't be more critical.

  •  How the hell do you expect (0+ / 0-)

    the people to care about "saving the Constitution" if the damn Supreme Court doesn't care.

  •  Supreme Court Leaves Bush GUILTY (2+ / 0-)
    Recommended by:
    Blutodog, bobdevo

    The Supreme Court might be happy to leave alone the president it installed 7 years ago when it was all to happy to intervene in political matters on his behalf. But its abdication of authority here doesn't leave Bush unjudged, even in the legally binding sense.


    Federal Court Strikes Down NSA Warrantless Surveillance Program (8/17/2006)

    [...] U.S. District Court Judge Anna Diggs Taylor agreed with the ACLU that the NSA program violates Americans’ rights to free speech and privacy under the First and Fourth Amendments of the Constitution, and runs counter to the Foreign Intelligence Surveillance Act (FISA) passed by Congress. Judge Taylor also rejected the government’s argument that the case could not proceed because of state secrets, saying that facts about NSA wiretapping have already been conceded by the government.

    Taylor found Bush and his regime guilty of many counts of violating FISA. Each violation carries significant criminal penalties, that presidential immunity does not protect Bush from. FISA has not been changed to grant Bush immunity; there is no other law doing so; Bush does not even have the power to pardon himself.

    Now the Supreme Court has declined to do anything to change the standing verdict. So Bush is guilty.

    When do we get the cops to go round him up and bust his criminal gang already? What does it take in this country for a convicted felon who's hated by the millions of people he's violated to finally face some consequences?

    "When the going gets weird, the weird turn pro." - HST

    by DocGonzo on Tue Feb 19, 2008 at 09:35:13 AM PST

    •  Kind of (1+ / 0-)
      Recommended by:
      DocGonzo

      Now the Supreme Court has declined to do anything to change the standing verdict. So Bush is guilty.

      It is the same case, but the Sixth set aside Taylor's ruling, and this was the ACLU's appeal of that. Taylor's ruling does not stand.

      •  Dammit (0+ / 0-)

        I missed the appeal decision in the 6th.

        It's criminal that the Supreme Court can recognize these matters are legitimate for lower courts, but that its own status is not required when such an unequivocal decision found the president guilty of repeated tyranny, violating the FISA and the Constitution.

        "When the going gets weird, the weird turn pro." - HST

        by DocGonzo on Tue Feb 19, 2008 at 11:29:16 AM PST

        [ Parent ]

    •  Well, no, (0+ / 0-)

      the Taylor decision was overturned on appeal and the Supreme Court refused to review the decision of the appellate court.

  •  The good news: (0+ / 0-)

    On January 29, in all probability we will have an Attorney General who will vigorously prosecute the criminals who authorized the warrantless wiretaps.

    "we must guard against the acquisition of unwarranted influence, whether sought or unsought, by the military-industrial complex" Dwight D. Eisenhower

    by bobdevo on Tue Feb 19, 2008 at 09:38:50 AM PST

  •  alas, our Dem controlled Congress will insist (0+ / 0-)

    on telecom immunity.

    Let's celebrate those dedicated Democrats who folded on Roberts and Alito:  

    to hell with them all.

    "You can't be neutral on a moving train." - Howard Zinn

    by bigchin on Tue Feb 19, 2008 at 09:43:08 AM PST

  •  If they steal you away... (0+ / 0-)

    ...and kill you and burn the body, apparently it's legal as long as the government doesn't admit to it.  OK, maybe it's not strictly legal, but there will never be a hearing to determine the illegality of the act if one can't "prove" they were harmed.

    Something is really wrong here.

    Silly me, I thought court cases were supposed to expose the evidence to show the proof.  

  •  Are you only affected by certainties? (0+ / 0-)

    The Supreme Court apparently thinks so.  They totally igore the fact that fear affects the exercise of free speech and fear is inherently about the uncertain.  We are all affected by surveillance, even if just one person is surveilled illegally, because allowing that to go unchallenged produces fear, even in those not surveilled.

    Lawyers are allowed to list "John Does" as defendants, when the identity of who they're suing hasn't been determined yet, in order to get a court order to require communications companies to reveal the identity.  Why not "John Doe" as plaintiff, for the same purpose, to get the government (or communications companies) to reveal the identities of who has been surveilled?

  •  Impeach the Supreme Court Justices; it's overdue. (0+ / 0-)

    Obviously they were just kidding when they swore to protect the Constitution of the United States.

    The sooner we are rid of them the better; they no longer serve any purpose.

    This time it's personal.

    by apostrophe on Tue Feb 19, 2008 at 11:05:21 AM PST

  •  One reason... (0+ / 0-)

    ...is that the lefty justices think that if they DO hear the case, the ACLU will lose creating an execrable precedent so they are preserving judgment until they have a better court in an Obama or Clinton presidency.

    There's something attractive about invincible ignorance... for the first 5 seconds.

    by MNPundit on Tue Feb 19, 2008 at 11:25:58 AM PST

  •  Welcome to ... (0+ / 0-)

    the continued disintegration of the Constitution, the dimantling of civil liberties, and the systematic destruction of Democracy in the United States.

    Why should we have ever feared Fidel Castro when we have George W. Bush and the neo-cons right here at home?

    "Fool me once, shame on -- shame on you. Fool me -- you can't get fooled again." --George W. Bush

    by RevJoe on Tue Feb 19, 2008 at 11:33:49 AM PST

  •  I can't see any reason (0+ / 0-)

    why legal action on this issue has to be either at the federal level or on constitutional grounds.  Why couldn't an attorney general of a state like California start criminal proceedings against the telecoms for violation of state privacy statutes?

    It is a stretch, and IANAL, but I note that California has some tough privacy laws:

    California has recently enacted two landmark pieces of consumer rights legislation, each of which creates new burdens for companies doing business with California residents. The first, Senate Bill No. 1386 ("SB 1386"), requires any company that stores customer data electronically to notify its California customers of a security breach to the company's computer system if the company knows or reasonably believes that unencrypted information about the customer has been stolen.

    I don't really think that this could work using this statute, but I think there are probably lots more of these kinds of laws in many other states.

  •  The fox is guarding the hen house... (0+ / 0-)

    It's pretty obvious that the Robert's court is bought and paid for by the bush/cheney WH and the GOP Neocons. God, help us.

  •  Still not clear what you meant... (0+ / 0-)

    "because of an inadvertent document release by the government, we do know who many of the people targeted are. The standing issue is thus much stronger in these case"

    What document is this referring to?

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