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Supreme Court Refuses to Hear Warrantless Wiretapping Appeal
The Supreme Court rejected a challenge Tuesday to the Bush administration's domestic spying program.The justices' decision, issued without comment, is the latest setback to legal efforts to force disclosure of details of the warrantless wiretapping that began after the Sept. 11 attacks.
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.
There are still a number of suits ongoing. But the hurdle in this case and most others challenging the program is a high one -- the court has refused to hear the lawsuit because the journalists, scholars, attorneys and national advocacy groups that filed the lawsuit can't prove that they were wiretapped under the program. Of course, that information is secret, and the government refuses to say.
Not all judges have found that to be a problem. For instance, district Judge Anna Diggs Taylor issued an injunction shutting down the program in August, 2006 -- and proclaimed in her opinion that "It was never the intent of the Framers to give the President such unfettered control, particularly where his actions blatantly disregard the parameters clearly enumerated in the Bill of Rights." An appeals court dismissed the suit last July, citing the lack of standing.
This suit was against the National Security Agency itself, not against the telecoms. Those suits are ongoing -- for now. They would be automatically dismissed if the administration got its way and the new surveillance law contained immunity for the companies' participation in the program.
This is a tough one. I can see the Supreme Court's point. I guess the court is essentially telling Congress, if you want to push this further, you'll have to compel the Executive to release the names of those who have been tapped and who are no longer part of an ongoing investigation.
Since there's no national security interest in keeping them secret, I can't see how the Executive could contest such a law.
February 19, 2008 1:22 PM | Reply | Permalink
The executive doesn't have to contest it, he just has to veto it. The problem is the standing doctrine which basically says that you can't get into court unless you can show some harm. If you can't show harm, you don't have a case or controversy as required by Art. III of the constitution. But of course, Art. III says nothing about standing.
Congress can't compel anything from the President. If they try, he refuses, they subpoena, he refuses, they vote for contempt, and then THE EXECUTIVE GETS TO DECIDE whether to pursue contempt charges.
The power relationships in our government are completely fucked because Congress has no independent authority to hold the executive accountable.
February 19, 2008 1:37 PM | Reply | Permalink
I agree, Reece. Republicans in Congress would have to wake up and realize their power has been usurped, then join Dems and create a veto proof coalition to get something done.
But that's the system. If Democrats can't convince Republican congressmen of the error of their ways, when it's so blatantly obvious, then I don't see why we should criticize the Supreme Court for this decision.
And anyway, before we talk about vetos, why don't we try passing a bill? You don't give up because of the threat of a veto, you force his hand, and make it abundantly clear to the American people what he's doing, so they rise up, call their Congressmen and implore them to override the veto.
Congress, wake up and assert yourself already! And if you don't, then let's vote in more dems in November and get closer to the necessary votes.
February 19, 2008 1:46 PM | Reply | Permalink
Republicans in Congress don't care that the President has usurped Congressional power. The theory of the constitution that the framers discussed in the Federalist Papers was simply wrong. They thought that the branches would compete for power and thus keep each other in check. But with ideologically based parties, the branches don't compete when more than one branch is controlled by the same party. For they are all trying to achieve the same ends and protect the party from a loss of power.
We can't operate on the belief that the system operates in a way that it actually doesn't.
February 19, 2008 1:58 PM | Reply | Permalink
There is no mechanism for Congress to force the executive branch of government to do anything. Any such law would be vetoed by the president. The Constitution says we have to impeach the president when he does things like this....oops, sorry, I mentioned the "I" word.
Congress doesn't care enough about an old piece of paper to follow what is written on the piece of paper, and we don't care enough about that to do the hard work needed to change Congress' mind.
Is anyone else following American Idol? Isn't it great?
February 19, 2008 1:41 PM | Reply | Permalink
Wow....Just....wow.
We can't have any oversight on our government because they claim either executive privilege or national security? Folks, this is a dictatorship. Make no bones about it. When the legislature and the people are powerless to reign in the executive, then that country has succumbed to a dictatorship.
The only tasks left are for them to dissolve executive term limits, nullify the general election this year and claim the mantle of power on a permanent basis. Sounds far fetched, right?
Well, they floated the idea with Rudy after 9/11. Remember when they wanted to delay the elections and/or extend his time in office after the attacks? There were more than a few people (Rudy included!) who pursued the possibility.
We have seen the rise of fascism through the stifling of free speech, totalitarianism disguised as security procedures, and dictatorship through the unabashed power grabs of the unitary executive.
Scary times, folks. Sleeping through it does not make it go away. You must wake up.
February 19, 2008 1:43 PM | Reply | Permalink
I am awake and sympathetic to your concerns. I really just do not know what else I can do besides recycle, live by my means, try to help my neighbor, write to my congressmen and women, blog and inform myself of current events and policies. If you have any helpful information that would help to alleviate the damage that Goerge Boy has done to this coutry let me know, otherwise I will be joining you and the rest who feel utterly powerless to stop these activities.
February 19, 2008 1:53 PM | Reply | Permalink
The root of the "Power Struggle" issue is that the framers did not account for political parties.
If our reps acted on principle rather than party loyalty we wouldn't be having these problems. The framers' hedge was the oathe to uphold the Constitution, above all else... That is where we are lacking--the oathe means nothing to them but a ceremonial process.
This is comedy at it's finest. Rest assured, a time will come when citizens won't stand for this shit anymore--In our lifetime, I suspect, due to websites like these. Think about it: blogging is in it's infancy and we're already seeing the chinks in the armor of established political power centers that have thrived in darkness for decades. Soon we will control the levers--we will be the fuckers instead of the fucked. It's already beginning with the Obama "Fan"amena (silly me!).
Coffee anybody?
February 19, 2008 2:42 PM | Reply | Permalink
"Congress, wake up and assert yourself already! And if you don't, then let's vote in more dems in November and get closer to the necessary votes."
Posted by noseeum
Didn`t we vote for the Dems to defund the war and stop Bush`s illegal wiretapping in 2006?
I agree with Centerpunch that it`s only a matter of time till citizens won`t stand for this shit anymore.I`m just sorry it didn`t happen to the Bush gang because they so richly deserve jail time;not a lot in a cosmic sense,but about 60-70 years.
Hail,George W.Bush,the Albatross President.
February 19, 2008 4:09 PM | Reply | Permalink
This is silly: "There is no mechanism for Congress to force the executive branch of government to do anything. Congress can cut funding with budget power. If the President refuses to provide the information, Congress can refuse to provide money. Whether Congress does it is another issue.
February 19, 2008 6:07 PM | Reply | Permalink
This is not true: "They would be automatically dismissed if the administration got its way and the new surveillance law contained immunity for the companies' participation in the program."
No, they would not "automatically" be dismissed. The question would then become -- if immunity were granted in a bill -- whether that grant of immunity by the Congress was or was not an illegal assertion by the legislature of judicial power. Arguably, once the Congress -- midway through litigation -- changes the law and changes the outcome of the case, the Congress is unconstitutionally exercising juducial power in affecting the outcome of pending litigation.
February 19, 2008 6:10 PM | Reply | Permalink
The issue of "standing" may be staring us in the face: We don't need the NSA's data to confirm or deny anything; we need only look at the way the NSLs were used in concert with other surveillance. The key isn't to get focused on NSLs, or the NSA's stonewall; but to focus on the already-declared-illegal activities which overlap with the NSA/EOP/telecoms unlawful surveillance. Questions would be:
1. How do we conduct discovery on already-declared-unconstitutional activities;
2. How do we link the evidence gleaned from 1. with the NSA's warrantless surveillance?
We're asked to believe that "no one" has standing, and "no one" can prove they were illegally monitored. This premise misses the point: The question isn't whether someone has or hasn't been illegally surveiled; but what publicly available evidence exists showing that illegal surveillance was being used in relationship to other now-disclosed/now-declared illegal activities like NSLs, warrantless interrogations, and prisoner abuse.
Think back to the NSLs. Those were declared unconstitutional. Would it not stand to reason that the same FBI that used the NSLs and affected those people subject of the NSLs were also relying on warrantless surveillance. Some US citizens have -- without charge -- been detained related to personal financial transactions which were perfectly legal, legitimate. However, it appears the NSA was used to target these citizens, and direct DHS-related personnel to approach them. What wild goos chases were the NSA telecoms sent because of invalid information they obtained through warrantless surveillance; and what public records exist of the telecom/NSA/US government efforts to use NSLs to dig into this invalid information?
Using the NSL's as an example, here's a sample discovery plan to look at NSA-related coordination on NSL-related activities:
A. The policies and procedures related to the now-illegally-determined NSL process. Focus on the coordination workflows within DoJ; and establish who within NSA was involved with the DOJ workflow/coordinations on these NSL-related workflows;
B. Copies of memoranda from DOJ OLC showing how the NSA coordinated on these NSL-related procedures [an illegal program related to NSLs cannot hide information behind "executive privilege" when that NSL-related activity is characterized/adjudicated as "unlawful"];
C. How contractors related to the NSA were involved with the processing, oversight, and management of the NSLs;
D. Copies of the contracts within the DOJ Small Business Division that were issued to process the NSLs, showing which contractors, by name and address, were involved with implementing the now-declared-illegal NSL process;
E. Copies of the DOJ OPR/IG investigations of the NSL process
F. Copies of any meetings DOJ had with the telecoms to discuss processing the NSLs, and how the telecoms were involved with the management, oversight, and control of the NSLs [briefing slides related to the NSLs that include redacted pages of presentations where the NSA-related personnel/contractors were also present]
G. The list of conference meeting notes and other trip reports related to coordination on the NSL process, and they were coordinated in Hawaii at the telecom discussions on supporting the NSLs; then showing that these same contractors were also involved with the NSA-related surveillance.
H. Where are the records of the NSL-related data being sent to the NSA telecoms, or intermediaries who had access to billing data? [There are private e-mail accounts which are publicly available and were disclosed inadvertently, then redacted.]
February 19, 2008 7:24 PM | Reply | Permalink
This is, of course, an intensely partisan decision. There's a long line of first-amendment jurisprudence that takes into account the damage done by the possibility that a person might be subjected to unlawful government behavior, even if they never actually have to face the jackboots in person. In fact, this kind of "We neither confirm nor deny having tapped your phone, but we assert the right to tap it (or to have tapped it in the past) at any time we please, without a warrant, and to do whatever we please with the information thus obtained" is pretty much the poster child for chilling effect.
But then what would you expect of a cabal that sees standing in a candidate whose "damage" consists of being found not to have won an election that he in fact did not win?
February 19, 2008 8:00 PM | Reply | Permalink
This non-sense is irrelevant: "The [US] government has refused to turn over information about the closely guarded program that could reveal who has been under surveillance. We haven't effectively asked for evidence from non-US government sources. Also, CIA agents have provided the EC/EU with inforamtion on rendition. Perhaps NSA personnel have provided information to foreign powers on other NSA illegal activity in the United States.
Wikileaks show us that nationals in foreign powers do disclose information. Who within non-US territory can provide sample reports from foreign powers showing those intelligence communities are aware of specific NSA violations of US law; and which foreign powers' nationals are willing to provide wikileaks a copy of the intelligence reports the foreign powers have showing the specific people in the US that have been illegally targeted?
The President's openly admitted he's conducted warrantless surveillance. Someone was involved in the US, they had targets, and this information was used/transferred to where it was applied in re rendition in Italy and Germany. Specifically, have the US lawyers worked closely with the German and Italian prosecutors who attempted to bring war crimes charges against the CIA? The prosecutors in Italy, Germany, and other nations may be able to provide information they gleaned about NSA-related illegal activity; perhaps they have evidence related to alleged war crime that might shed light on illegal NSA activity within the US. How was the alleged war crimes activity coordinated/implemented in Germany and Italy unless there was some connection with the NSA and US government stateside?
February 19, 2008 8:19 PM | Reply | Permalink
I think the point of the NSL's (National Security Letters) is where the issue really stands as illegal. The area where the whole process went wrong was when it was DOJ themselves that went off the reservation.
My objection is with the politicizing of the process, where say: Actor A makes an unsubstantiated statement about B. And that leads to B individual becoming targeted, and then after being effectively impugned by NSL's, where associates are contacted, banks are harrased in providing services, and an inquiry becomes an unsubstantiated accusation.
The real issue was, who was targeted with NSL's, what was the result? Were these NSL's closed and is the information subject to records disposition schedules where files are purged?
The fact that communications are hueristically monitored doesn't bother me, but say a foreign intelligence service targeting an American, to derail an investigation does! I mean, lets imagine that if say Aipac had had sympathetic assets that had colluded to interfere in the investigation within Shin Bet or Mossad, and those assets had reported an individual as a threat based on 'sources' and that NOC was defeated, then there is a BIG problem.
The issue with Brewster Jennings is similar in some respects to this concept, or say... the investigation of Dusty Foggo was derailed as a DOJ employee finds himself targeted, or DIA reports a BATF employee as a nefarious risk when in the investigation of arms trafficking, or the DEA is targeted by all the above, or ICE .. etc, etc. etc.
Yes the NSL's are a problem, and the vetting process and the compartmentalization of these agencies requires that an independent group or FISA manage the process.
I see a problem where intelligence "harmonic distortion feedback" would occur and the product that the expedited and loosened rules would facilitate would result in nothing more than a tool to obstruct investigations than facilitate them.
The requirement that there is a FISA origination of the NSL's and warrants for wire tapping prevent a scenario where the tool is used for abuse, provides a metric to evaluate success, and hostorically has not been a hinderance to getting warrants.
My objection remains to the abusive potential of unchecked usage of these tools outside an oversight of an independent review.
Hueristically monitoring doesn't really bother me all that much, but repeatedly subjecting individuals to NSL inquiries for the purposes of harrasment does!
This is Conitel all over again, and politically as the winds shift this is not an affective way to run the process of effectively allocating resources and having some milestone to measure the results upon.
If people can eventually come to the conclusion that deregulating mortgage lending is a bad idea, why would one imagine that no oversight of NSL's is?
The FISA court was a well tought out solution and the same tired ass and discredited excuse to torture, the ticking bomb argument, doesn't make the case in the age of communication, that a FISA contact cannot be made and a warrant established, even AFTER the initial 72 hour "fishing expedition period" is over.
At 300 million people in the country, and 216,000,000 hours, everybody could be investigated! I mean why not? The resources is the obvious answer, and secondly the requirement to report the activity!
Only those whom advocate zero accountability, an absence of metrics, and opening the process to obstructing investigations can seriously say that the removal of FISA oversight is a good idea.
It led to abuses plain and simple, and the NSL's where were the abuses hit the asphalt, did the damage, and impugned peoples characted and constituted damages in delaying of services, (to delay is to deny) in justice, due process, and recourse to damage.
The SCOTUS is back to the point at quibbling cause, as if the absence of demonstratable damages by a plaintiff preclude the damages themselves.
"We Hold These Truths To Be Self-Evident"
"The shortest distance between two points is a straight line"
The SCOTUS holds the axiom that the distance between two points is not a straight line! It states that until they see the point that there is no line!
I think it is Self-Evident that they have missed the point! The court crosses the line in arguing and finding as it has.
I fault the SCOTUS for it's politics and the manner in which they have handled it. History will look at their acquiesence as details emerge of abuse and the court will go down in history as Sadducees.
Blame the courts, CHRISTOPHER, FORMER SECRETARY OF STATE, et al. v. HARBURY.
The same reasoning or lack thereof.
And look at what the courts decisions have encouraged.
I think that in a a political narrative that the conversation is Democratic and Republican, I see it as a moral lapse of the court.
The SCOTUS holds the axiom that the distance between two points is not a straight line! It states that until they see the point, can have a point brought into court, have a point testify, that there is no line!
And we all know that in geometry a point has no size, but has a position.
And the position that injury was sustained must willfully be ignored to decide as the court has done.
February 19, 2008 8:32 PM | Reply | Permalink
There is non-US government-sourced information that can challenge the NSA's illegal activity against US citizens. Time to go to the foreign powers and ask them what intelligence they have showing the NSA violated the US Constitution. The information is likely available through indirect, third parties.
For example, it doesn't make sense that now-weak Russia/China would attempt to only challenge the US government on the battlefield when they had intelligence that would undermine the US government in the eyes of the US courts. Russia and China have openly discussed their concerns with the US's alleged illegal abuse of power, war crimes, and other violations of international law. During WWII, the US was monitoring Japan and Germany. They did know about war crimes. Is someone asking us to believe that the Russians and Chinese would only discuss military options to combat the alleged US illegal war crimes, but they would not disclose through third parties evidence about illegal US government activity against its own citizens?
If someone in Russia or China was serious about peace, they'd leave open the option to check the US government by providing the world with evidence of illegal US government activity. Time for the opposition parties in Russia and Taiwan to ask: Is our government serious about peace; if so, when do the governments of Russia and China plan to use all peaceful options -- including disclosure of illegal NSA violations of US law -- as a mechanism to check the US government?
Conversely, if the Russians and Chinese, despite their intelligence gathering in the US, do have this information about known NSA violations of US citizens' rights, but they do not disclose this evidence, we're being asked to believe they'll confront the United States militarily, despite their relatively weak position. That defies reason. They don't have the resources. They'd rather use a low cost solution. The intelligence about NSA violations against US citizens exists.
February 19, 2008 8:39 PM | Reply | Permalink
This is not the usual case of standing. To have standing a party must show injury, causation and redressability. I would suggest that standing does indeed in this case.
Injury must be palpable and real and related to a legally protected interest. In this case there is indeed a nexus between a legally protected 1st amendment right and an attorney-client privilege right that are legally protected interests. It is the chill that an unregulated, unreviewed and secret system of government searches creates a real and palpable harm to the plaintiffs. The ACLU chose a very specific set of plaintiffs that would have every expectation that they could become subject to unlawful surveillance by the government. Attorneys representing US clients involved in proceedings related to terrorism (either as a defendant in a criminal case or as a party that could become subject to civil action for dealing with "terrorist" organizations) face very practical considerations concerning the sanctity of confidential attorney-client communications. Advocacy groups, journalists and scholars would naturally be in communication with others in foreign countries that may well fall under the purview of the unregulated program. We do not know the criteria, we do not know the standard of probable cause (NSA seems to adopt a very loose suspicion definition) although we do know that there is no independent review to guard against misguided application of the rules or outright abuse. We also do not know whether standards exist to prevent subsequent investigations (such as NSL's and other legal action) that would damage the reputational interests of the individual. Indeed, an individual may be denied security clearances based on such covered communications which will be forever secret. The secrecy of the government makes it impossible for the parties to know whether they have been harmed which is the exact opposite of traditional search authorizations (warrants) which place the individual on notice. In such an atmosphere, one must be careful with whom they associate and the topics that are discussed. Note, it does not mean that these individuals have actually done anything wrong.
Causation obviously exists because of the government's actions. I have been a prosecutor both on the state and federal level. I have too often seen police and other investigative agencies go to far in what they are seeking and the probable cause basis for securing warrants. The standards inevitably get stretched as those within the system attempt to carry out their duties. This does not require an evil motive. The pressure to provide results, an exaggerated fear of the enemy or or simple lack of expertise and training can cause the problem. We also have to remember that such systems are also subject to abuse. We know that some Republican congressmen sought records concerning conversations of government officials and elected representatives that NSA had scooped up in their efforts. We know from history (Nixon's administration) that government agencies stretched the rules to justify spying on political oppenents whether they were in the public eye or whether they were politicians. We know that the FBI conducted illegal surveillance of activist, religious or peace groups both during the Vietnam War as well as the current terrorist scare. Indeed, it was Martin Luther King that became subject of surveillance because of his activities at an even earlier time.
These are redressable harms to the public. The whole purpose of the Bill of Rights and the fourth amendment was to prevent writs of assistance that permitted authorities to receive blanket authority to search wihout particularized probable cause that was one cause of the revolution. How soon we forget. Even in cases involving organized crime a wire tap must exclude those who are innocently swept up in the net. The effectiveness of those protections are subject to independent judicial supervision. We have seen the creation of a "civil rights" office within the executive branch that has thus far failed to exercise control over the process.
I remember in Con Law when I once answered a question concerning a constitutional requirement by responding with a Supreme Court holding. The prof rightly questioned my basis. He simply stated that the Supreme Court can get it wrong. He cited several other cases contrary to my position and said that we needed to apply constitutional principles in setting forth or position. The wholesale violation of the constitution and the Bill of Rights should never be defended on the basis of secrecy that makes it impossible for those subjected to the violation of their rights and chilled in their activities because that secrecy prevents actual knowledge. This is not the writer arguing that he should be able to challenge the constitutionality simply because he owns a phone or uses the internet. These are people clearly within the zone of those whose activities would likely bring them withing the purview of the program and whose activities legal interests would be impacted by the lack of constitutional protections inherent in the government's surveillance programs.
February 19, 2008 11:41 PM | Reply | Permalink