Court Rules Warrantless Wiretaps Unconstitutional (1 Viewer)

[Bottomfeeder Sports]

I'm reading this thing again and I can't believe I missed this:The fed argued that they couldn't hand over evidence or prove their argument because it would be divulging state secrets. The judge actually found in her ruling that the President and the administration had said enough about the program in public to make a ruling.In other words, she based at least some parts of her ruling on political speeches, press releases and the like. On out of court statements that aren't close to being under oath. So now, political speeches and press releases are admittable evidence to prove the truth of the matter they assert?Ah, no.The more I read this ruling, the more I know this will be destroyed on appeal if the fed appeals it.

Didn't another judge rule the state secrets defense void in this case? And if so, is this kind of like the government being ruled guilty in absentia?

No, this is admitting in a holding that the judge used inadmissable hearsay to make her decision for plaintiff's whose standing was murky at best.And the fed won part of this thing as well, and state secrets was a reason why.

Its not inadmissable hearsay - the plaintiffs submitted affidavit testimony that the Court determined was "undisputed." The state secret doctrine argument is weak on the warrantless wiretapping issue as it is obviously well know that the government has admitted that the program exists (unlike the datamining issue, on whcih Judge Taylor ruled in favor of the government).The government's argument on standing is also a weak attempt to avoid the constitutional merits of their eavesdropping program. I wil be very disappointed if the 6th Cir. punts this case on that basis. There is no question that the mere existence of the TSP constitutes an actual invasion of a legally protected interest. Of course the ACLU can't find someone who was actually wiretapped, because that information is secret. Should that preclude the Court from doing its job?

Page 24 of the decision-

Indeed, as the perceived need for secrecy has apparently required that no person be notified that he is aggrieved by the activity, and there have been no prosecutions, no requests for extensions or retroactive approvals of warrants, no victim in America would be given standing to challenge this or any other unconstitutional activity, according to the Government.

This is a strong argument?

 

[Yankee23Fan]

I'm reading this thing again and I can't believe I missed this:The fed argued that they couldn't hand over evidence or prove their argument because it would be divulging state secrets. The judge actually found in her ruling that the President and the administration had said enough about the program in public to make a ruling.In other words, she based at least some parts of her ruling on political speeches, press releases and the like. On out of court statements that aren't close to being under oath. So now, political speeches and press releases are admittable evidence to prove the truth of the matter they assert?Ah, no.The more I read this ruling, the more I know this will be destroyed on appeal if the fed appeals it.

Didn't another judge rule the state secrets defense void in this case? And if so, is this kind of like the government being ruled guilty in absentia?

No, this is admitting in a holding that the judge used inadmissable hearsay to make her decision for plaintiff's whose standing was murky at best.And the fed won part of this thing as well, and state secrets was a reason why.

Its not inadmissable hearsay - the plaintiffs submitted affidavit testimony that the Court determined was "undisputed." The state secret doctrine argument is weak on the warrantless wiretapping issue as it is obviously well know that the government has admitted that the program exists (unlike the datamining issue, on whcih Judge Taylor ruled in favor of the government).The government's argument on standing is also a weak attempt to avoid the constitutional merits of their eavesdropping program. I wil be very disappointed if the 6th Cir. punts this case on that basis. There is no question that the mere existence of the TSP constitutes an actual invasion of a legally protected interest. Of course the ACLU can't find someone who was actually wiretapped, because that information is secret. Should that preclude the Court from doing its job?

The court deemed the affidavit testimony undisputed because the fed used the state secret argument, and the judge said that they have already said enough in public to help her make up her mind. She relied on stuff that shouldn't be admissable, period.As to your last question, yes, that should preclude the court from doing its job. If a plaintiff doesn't have standing they can't bring the suit. Con Law 101. Just because standing is difficult to maintain doesn't mean that we should forget the mandate of it.I don't necessarily disagree with the final holding, but the judge got there in a bad way and I'm betting this gets overturned if appealed.I wonder, however, if it will get appealled. I'm not so sure it's in the feds best interest to do so. Couldn't they, theoretically, modify the program just enough to comply with FISA and thus have that oversight and keep the thing moving right along without having to fight the fight in public? Seems possible to me.

 

[Yankee23Fan]

I'm reading this thing again and I can't believe I missed this:The fed argued that they couldn't hand over evidence or prove their argument because it would be divulging state secrets. The judge actually found in her ruling that the President and the administration had said enough about the program in public to make a ruling.In other words, she based at least some parts of her ruling on political speeches, press releases and the like. On out of court statements that aren't close to being under oath. So now, political speeches and press releases are admittable evidence to prove the truth of the matter they assert?Ah, no.The more I read this ruling, the more I know this will be destroyed on appeal if the fed appeals it.

Didn't another judge rule the state secrets defense void in this case? And if so, is this kind of like the government being ruled guilty in absentia?

No, this is admitting in a holding that the judge used inadmissable hearsay to make her decision for plaintiff's whose standing was murky at best.And the fed won part of this thing as well, and state secrets was a reason why.

Its not inadmissable hearsay - the plaintiffs submitted affidavit testimony that the Court determined was "undisputed." The state secret doctrine argument is weak on the warrantless wiretapping issue as it is obviously well know that the government has admitted that the program exists (unlike the datamining issue, on whcih Judge Taylor ruled in favor of the government).The government's argument on standing is also a weak attempt to avoid the constitutional merits of their eavesdropping program. I wil be very disappointed if the 6th Cir. punts this case on that basis. There is no question that the mere existence of the TSP constitutes an actual invasion of a legally protected interest. Of course the ACLU can't find someone who was actually wiretapped, because that information is secret. Should that preclude the Court from doing its job?

Page 24 of the decision-

Indeed, as the perceived need for secrecy has apparently required that no person be notified that he is aggrieved by the activity, and there have been no prosecutions, no requests for extensions or retroactive approvals of warrants, no victim in America would be given standing to challenge this or any other unconstitutional activity, according to the Government.

This is a strong argument?

It's a decent argument. But many of the arguments in this case seemed to have boiled down to a similar argument - no one will ever have standing - no secrets can be divulged - and on and on and on. It had to be a fun argument to listen to, if nothing else.The next step, if there is one, will be interesting.

 

[Christo]

I'm reading this thing again and I can't believe I missed this:The fed argued that they couldn't hand over evidence or prove their argument because it would be divulging state secrets. The judge actually found in her ruling that the President and the administration had said enough about the program in public to make a ruling.In other words, she based at least some parts of her ruling on political speeches, press releases and the like. On out of court statements that aren't close to being under oath. So now, political speeches and press releases are admittable evidence to prove the truth of the matter they assert?Ah, no.The more I read this ruling, the more I know this will be destroyed on appeal if the fed appeals it.

Didn't another judge rule the state secrets defense void in this case? And if so, is this kind of like the government being ruled guilty in absentia?

No, this is admitting in a holding that the judge used inadmissable hearsay to make her decision for plaintiff's whose standing was murky at best.

Exactly. This case gets reviewed de novo. It should never have been decided by summary judgment. She should have required a trial.

 

[CletiusMaximus]

I'm reading this thing again and I can't believe I missed this:The fed argued that they couldn't hand over evidence or prove their argument because it would be divulging state secrets. The judge actually found in her ruling that the President and the administration had said enough about the program in public to make a ruling.In other words, she based at least some parts of her ruling on political speeches, press releases and the like. On out of court statements that aren't close to being under oath. So now, political speeches and press releases are admittable evidence to prove the truth of the matter they assert?Ah, no.The more I read this ruling, the more I know this will be destroyed on appeal if the fed appeals it.

Didn't another judge rule the state secrets defense void in this case? And if so, is this kind of like the government being ruled guilty in absentia?

No, this is admitting in a holding that the judge used inadmissable hearsay to make her decision for plaintiff's whose standing was murky at best.

Exactly. This case gets reviewed de novo. It should never have been decided by summary judgment. She should have required a trial.

A trial on the state secrets issue? That is rediculous. The government says it can't defend this lawsuit without revealing state secrets. The ACLU says its case is based soley on evidence already admitted publicly, not secrets, including white house press releases. Everything is in the record. What is the triable issue?

It is undisputed that Defendants have publicly admitted to the following: (1) the TSP exists; (2) it operates without warrants; (3) it targets communications where one party to the communication is outside the United States, and the government has a reasonable basis to conclude that one party to the communication is a member of al Qaeda, affiliated with al Qaeda, or a member of an organization affiliated with al Qaeda, or working in support of al Qaeda. As the Government has on many occasions confirmed the veracity of these allegations, the state secrets privilege does not apply to this information.

If the 6th Circuit wants to dump this case, it'll probably do it on the standing issue, which I think is weak. The first amendment stuff is more tenuous than the 4th amendment issue, which is the real meat of the case in my opinion. I would hope the appeallate courts address the real issue here and not skate on the procedural technicalities, but that's probably wishful thinking.

 

[whoknew]

If the 6th Circuit wants to dump this case, it'll probably do it on the standing issue, which I think is weak. The first amendment stuff is more tenuous than the 4th amendment issue, which is the real meat of the case in my opinion. I would hope the appeallate courts address the real issue here and not skate on the procedural technicalities, but that's probably wishful thinking.

Standing is not at all a procedural technicality. Standing is a constitutional issue.

 

[The Z Machine]

Good, and I hope they don't appeal.

Modify the program to exist within the FISA framework already set forth. This action is hubris by the excutive branch, thinking themselves above the law and not accountable for their actions due to the mandate of the "War on Terror".

#### that. They aren't above the law and they need to act within precedent. The ruling is the correct one. This doesn't significantly hurt the gov't ability to wiretap whomever they want, this just limits thier blatant power grab in the face of adversity.

 

[Christo]

I'm reading this thing again and I can't believe I missed this:The fed argued that they couldn't hand over evidence or prove their argument because it would be divulging state secrets. The judge actually found in her ruling that the President and the administration had said enough about the program in public to make a ruling.In other words, she based at least some parts of her ruling on political speeches, press releases and the like. On out of court statements that aren't close to being under oath. So now, political speeches and press releases are admittable evidence to prove the truth of the matter they assert?Ah, no.The more I read this ruling, the more I know this will be destroyed on appeal if the fed appeals it.

Didn't another judge rule the state secrets defense void in this case? And if so, is this kind of like the government being ruled guilty in absentia?

No, this is admitting in a holding that the judge used inadmissable hearsay to make her decision for plaintiff's whose standing was murky at best.

Exactly. This case gets reviewed de novo. It should never have been decided by summary judgment. She should have required a trial.

A trial on the state secrets issue?

No, she should have held an evidentiary hearing on the standing issue.

 

[Poppa]

http://today.reuters.com/news/articlenews....PING-APPEAL.xml

Appeal. Of course...

WASHINGTON (Reuters) - The U.S. Justice Department said on Thursday that it has appealed an order by a federal judge in Detroit to halt the National Security Agency's program of domestic eavesdropping.

"Because the terrorist surveillance program is an essential tool for the intelligence community in the war on terror, the Department of Justice has appealed the District Court's order," it said in a statement, adding that the department believes the program is "lawful and protects civil liberties."

 

[wildbill]

http://today.reuters.com/news/articlenews....PING-APPEAL.xml

Appeal. Of course...

WASHINGTON (Reuters) - The U.S. Justice Department said on Thursday that it has appealed an order by a federal judge in Detroit to halt the National Security Agency's program of domestic eavesdropping.

"Because the terrorist surveillance program is an essential tool for the intelligence community in the war on terror, the Department of Justice has appealed the District Court's order," it said in a statement, adding that the department believes the program is "lawful and protects civil liberties."

So what happens now? How long until the appeal is heard? And how long until a verdict is rendered?And what happens to the program until that time? Is it shut down completely, or do they go on with business as usual?

 

[Poppa]

http://today.reuters.com/news/articlenews....PING-APPEAL.xml

Appeal. Of course...

WASHINGTON (Reuters) - The U.S. Justice Department said on Thursday that it has appealed an order by a federal judge in Detroit to halt the National Security Agency's program of domestic eavesdropping.

"Because the terrorist surveillance program is an essential tool for the intelligence community in the war on terror, the Department of Justice has appealed the District Court's order," it said in a statement, adding that the department believes the program is "lawful and protects civil liberties."

So what happens now? How long until the appeal is heard? And how long until a verdict is rendered?And what happens to the program until that time? Is it shut down completely, or do they go on with business as usual?

Gotta figure "business as usual" - whilst giving :thefinger:

 

[Bottomfeeder Sports]

So what happens now? How long until the appeal is heard? And how long until a verdict is rendered?And what happens to the program until that time? Is it shut down completely, or do they go on with business as usual?

We are talking about an administration that signs bills into laws while at the same time issuing a signing statement that they will completely ignore the provisions of this law they dislike. An administration on a "holy crusade" against the "evil doers" who find the trivial hoops of the FISA law too burdensom and irrelevant in their execution of their abstract "war on terror". An administration that claims that the President as Commander in Chief is above any checks and balances. At best someone at NSA yawned yesterday.

 

[CletiusMaximus]

A trial on the state secrets issue?

No, she should have held an evidentiary hearing on the standing issue.

What would the evidence be? The facts are undisputed. If the law requires the plaintiffs to be actual wiretapping subjects, they lose and the case is dismissed. The identity of those potential plaintiffs is unknown. If the law allows these plaintiffs to sue because their work is chilled by the mere existence of the TSP, the case proceeds. Personally, I think this is an easy one.In any event, the standing issue is a cop-out. If the TSP is unconstitutional, parties whose rights have been violated obviously exist. The interesting issue is whether this program is unconstitutional, or even criminal. Since yesterday morning, I've seen those that oppose this decision take two positions: 1) attack the judge personally, the most weak-minded, low-rent, bottom-feeding, cowardly and disgusting reaction one could expect; or 2) attack the procedural issues rather than the substance - a tactic this administration has frequently taken over the past five years in the Padilla, Hamdi, Hamdan and other detainee cases. They have consistently adopted untenable constitutional positions, and held to those positions until no longer possible, then tried to escape the ramifications through legal trickery, always avoiding the merits. This administration is a constitutional nighmare, surpassing even the dismal constitutional record of the prior executive. Its an embarrassment to any true conservative who voted for these clowns.

 

[Yankee23Fan]

A trial on the state secrets issue?

No, she should have held an evidentiary hearing on the standing issue.

What would the evidence be? The facts are undisputed. If the law requires the plaintiffs to be actual wiretapping subjects, they lose and the case is dismissed. The identity of those potential plaintiffs is unknown. If the law allows these plaintiffs to sue because their work is chilled by the mere existence of the TSP, the case proceeds. Personally, I think this is an easy one.In any event, the standing issue is a cop-out. If the TSP is unconstitutional, parties whose rights have been violated obviously exist. The interesting issue is whether this program is unconstitutional, or even criminal. Since yesterday morning, I've seen those that oppose this decision take two positions: 1) attack the judge personally, the most weak-minded, low-rent, bottom-feeding, cowardly and disgusting reaction one could expect; or 2) attack the procedural issues rather than the substance - a tactic this administration has frequently taken over the past five years in the Padilla, Hamdi, Hamdan and other detainee cases. They have consistently adopted untenable constitutional positions, and held to those positions until no longer possible, then tried to escape the ramifications through legal trickery, always avoiding the merits. This administration is a constitutional nighmare, surpassing even the dismal constitutional record of the prior executive. Its an embarrassment to any true conservative who voted for these clowns.

Standing in Constitutional Law is not a cop-out.

 

[IvanKaramazov]

A trial on the state secrets issue?

No, she should have held an evidentiary hearing on the standing issue.

What would the evidence be? The facts are undisputed. If the law requires the plaintiffs to be actual wiretapping subjects, they lose and the case is dismissed. The identity of those potential plaintiffs is unknown. If the law allows these plaintiffs to sue because their work is chilled by the mere existence of the TSP, the case proceeds. Personally, I think this is an easy one.In any event, the standing issue is a cop-out. If the TSP is unconstitutional, parties whose rights have been violated obviously exist. The interesting issue is whether this program is unconstitutional, or even criminal. Since yesterday morning, I've seen those that oppose this decision take two positions: 1) attack the judge personally, the most weak-minded, low-rent, bottom-feeding, cowardly and disgusting reaction one could expect; or 2) attack the procedural issues rather than the substance - a tactic this administration has frequently taken over the past five years in the Padilla, Hamdi, Hamdan and other detainee cases. They have consistently adopted untenable constitutional positions, and held to those positions until no longer possible, then tried to escape the ramifications through legal trickery, always avoiding the merits. This administration is a constitutional nighmare, surpassing even the dismal constitutional record of the prior executive. Its an embarrassment to any true conservative who voted for these clowns.

Standing in Constitutional Law is not a cop-out.

Could you address the bolded part? I'm not a constitutional lawyer, but I know what standing is. It seems to me that Cletius raises a good point about why the court should be fairly liberal in granting standing in this particular case.

 

[Yankee23Fan]

A trial on the state secrets issue?

No, she should have held an evidentiary hearing on the standing issue.

What would the evidence be? The facts are undisputed. If the law requires the plaintiffs to be actual wiretapping subjects, they lose and the case is dismissed. The identity of those potential plaintiffs is unknown. If the law allows these plaintiffs to sue because their work is chilled by the mere existence of the TSP, the case proceeds. Personally, I think this is an easy one.In any event, the standing issue is a cop-out. If the TSP is unconstitutional, parties whose rights have been violated obviously exist. The interesting issue is whether this program is unconstitutional, or even criminal. Since yesterday morning, I've seen those that oppose this decision take two positions: 1) attack the judge personally, the most weak-minded, low-rent, bottom-feeding, cowardly and disgusting reaction one could expect; or 2) attack the procedural issues rather than the substance - a tactic this administration has frequently taken over the past five years in the Padilla, Hamdi, Hamdan and other detainee cases. They have consistently adopted untenable constitutional positions, and held to those positions until no longer possible, then tried to escape the ramifications through legal trickery, always avoiding the merits. This administration is a constitutional nighmare, surpassing even the dismal constitutional record of the prior executive. Its an embarrassment to any true conservative who voted for these clowns.

Standing in Constitutional Law is not a cop-out.

Could you address the bolded part? I'm not a constitutional lawyer, but I know what standing is. It seems to me that Cletius raises a good point about why the court should be fairly liberal in granting standing in this particular case.

If the action is unconstitutional then there are parties whose rights have been violated.Ok. Prove it. Find someone with the standing to challenge it. There are laws policies and procedures that are knocked down all the time, but they are done so by plaintiff's that have the standing to do it. I can't bring a lawsuit claiming a law is unconstitutional because I just know that it must have affected someone somewhere in this country.

It's way, way too close to the theory that a tax payer has standing to sue the federal government over anything because the taxes pay for the government. The courts don't buy it.

The end result of this holding is probably the right one. I think she got there in a bad way and its going to likely be overturned because of that.

 

[IvanKaramazov]

If the action is unconstitutional then there are parties whose rights have been violated.Ok. Prove it. Find someone with the standing to challenge it. There are laws policies and procedures that are knocked down all the time, but they are done so by plaintiff's that have the standing to do it.

The problem with this is that it's impossible for anybody to know they've been wiretapped. Under your standard (which I admit is completely appropriate in other cases), it seems like it would be impossible for anybody to ever challenge this policy, because they could never demonstrate that they were affected by it. I don't want to get too far into this because it's out of my field, and it's tangential to the overall result of the ruling. It just seems like this may be some sort of special case as far as standing is concerned.

 

[Yankee23Fan]

If the action is unconstitutional then there are parties whose rights have been violated.Ok. Prove it. Find someone with the standing to challenge it. There are laws policies and procedures that are knocked down all the time, but they are done so by plaintiff's that have the standing to do it.

The problem with this is that it's impossible for anybody to know they've been wiretapped. Under your standard (which I admit is completely appropriate in other cases), it seems like it would be impossible for anybody to ever challenge this policy, because they could never demonstrate that they were affected by it. I don't want to get too far into this because it's out of my field, and it's tangential to the overall result of the ruling. It just seems like this may be some sort of special case as far as standing is concerned.

I agree this isn't an easy one. None of the cases surrounding the war powers ever are.

 

[IvanKaramazov]

Furthermore, if anybody has standing in this case, it's the ACLU. We all know they hate America, and since they probably have UBL's unlisted number on speed-dial, they have good reason to think they've been eavesdropped upon.

 

[whoknew]

If the action is unconstitutional then there are parties whose rights have been violated.Ok. Prove it. Find someone with the standing to challenge it. There are laws policies and procedures that are knocked down all the time, but they are done so by plaintiff's that have the standing to do it.

The problem with this is that it's impossible for anybody to know they've been wiretapped. Under your standard (which I admit is completely appropriate in other cases), it seems like it would be impossible for anybody to ever challenge this policy, because they could never demonstrate that they were affected by it. I don't want to get too far into this because it's out of my field, and it's tangential to the overall result of the ruling. It just seems like this may be some sort of special case as far as standing is concerned.

What about someone who is arrested based on a warrantless wiretap? They'd clearly have standing.

 

[IvanKaramazov]

If the action is unconstitutional then there are parties whose rights have been violated.Ok. Prove it. Find someone with the standing to challenge it. There are laws policies and procedures that are knocked down all the time, but they are done so by plaintiff's that have the standing to do it.

The problem with this is that it's impossible for anybody to know they've been wiretapped. Under your standard (which I admit is completely appropriate in other cases), it seems like it would be impossible for anybody to ever challenge this policy, because they could never demonstrate that they were affected by it. I don't want to get too far into this because it's out of my field, and it's tangential to the overall result of the ruling. It just seems like this may be some sort of special case as far as standing is concerned.

What about someone who is arrested based on a warrantless wiretap? They'd clearly have standing.

Would they necessarily know that?

 

[whoknew]

If the action is unconstitutional then there are parties whose rights have been violated.Ok. Prove it. Find someone with the standing to challenge it. There are laws policies and procedures that are knocked down all the time, but they are done so by plaintiff's that have the standing to do it.

The problem with this is that it's impossible for anybody to know they've been wiretapped. Under your standard (which I admit is completely appropriate in other cases), it seems like it would be impossible for anybody to ever challenge this policy, because they could never demonstrate that they were affected by it. I don't want to get too far into this because it's out of my field, and it's tangential to the overall result of the ruling. It just seems like this may be some sort of special case as far as standing is concerned.

What about someone who is arrested based on a warrantless wiretap? They'd clearly have standing.

Would they necessarily know that?

Why wouldn't they? If they are prosecuted, wouldn't that info have to be disclosed?

 

[Mr. Chumley]

First, let me say I have never heard of Debbie Schlussel. She obviously has an axe to grind and wants her point of view to come across. But she does have some interesting things to say about the men that filed this lawsuit. Again, before people start screaming about this site I know the article does not present both sides of the argument. I'm just posting for your reading pleasure.

link

 

[commisholio]

If the action is unconstitutional then there are parties whose rights have been violated.Ok. Prove it. Find someone with the standing to challenge it. There are laws policies and procedures that are knocked down all the time, but they are done so by plaintiff's that have the standing to do it.

The problem with this is that it's impossible for anybody to know they've been wiretapped. Under your standard (which I admit is completely appropriate in other cases), it seems like it would be impossible for anybody to ever challenge this policy, because they could never demonstrate that they were affected by it. I don't want to get too far into this because it's out of my field, and it's tangential to the overall result of the ruling. It just seems like this may be some sort of special case as far as standing is concerned.

I vaguely recall from my ConLaw class many moons ago that there was a nonstandard theory for standing if the alleged harm was likely to recur and if it was difficiult to identify a proper plaintiff. Am I totally misremembering here?

 

[whoknew]

If the action is unconstitutional then there are parties whose rights have been violated.Ok. Prove it. Find someone with the standing to challenge it. There are laws policies and procedures that are knocked down all the time, but they are done so by plaintiff's that have the standing to do it.

The problem with this is that it's impossible for anybody to know they've been wiretapped. Under your standard (which I admit is completely appropriate in other cases), it seems like it would be impossible for anybody to ever challenge this policy, because they could never demonstrate that they were affected by it. I don't want to get too far into this because it's out of my field, and it's tangential to the overall result of the ruling. It just seems like this may be some sort of special case as far as standing is concerned.

I vaguely recall from my ConLaw class many moons ago that there was a nonstandard theory for standing if the alleged harm was likely to recur and if it was difficiult to identify a proper plaintiff. Am I totally misremembering here?

Are you thinking of capable of repetition but evading review? That's a different theory and is an exception to mootness.

 

[commisholio]

If the action is unconstitutional then there are parties whose rights have been violated.Ok. Prove it. Find someone with the standing to challenge it. There are laws policies and procedures that are knocked down all the time, but they are done so by plaintiff's that have the standing to do it.

The problem with this is that it's impossible for anybody to know they've been wiretapped. Under your standard (which I admit is completely appropriate in other cases), it seems like it would be impossible for anybody to ever challenge this policy, because they could never demonstrate that they were affected by it. I don't want to get too far into this because it's out of my field, and it's tangential to the overall result of the ruling. It just seems like this may be some sort of special case as far as standing is concerned.

I vaguely recall from my ConLaw class many moons ago that there was a nonstandard theory for standing if the alleged harm was likely to recur and if it was difficiult to identify a proper plaintiff. Am I totally misremembering here?

Are you thinking of capable of repetition but evading review? That's a different theory and is an exception to mootness.

That's exactly what I was thinking of. Thanks much.

 

[Christo]

A trial on the state secrets issue?

No, she should have held an evidentiary hearing on the standing issue.

What would the evidence be? The facts are undisputed. If the law requires the plaintiffs to be actual wiretapping subjects, they lose and the case is dismissed. The identity of those potential plaintiffs is unknown. If the law allows these plaintiffs to sue because their work is chilled by the mere existence of the TSP, the case proceeds. Personally, I think this is an easy one.In any event, the standing issue is a cop-out. If the TSP is unconstitutional, parties whose rights have been violated obviously exist. The interesting issue is whether this program is unconstitutional, or even criminal. Since yesterday morning, I've seen those that oppose this decision take two positions: 1) attack the judge personally, the most weak-minded, low-rent, bottom-feeding, cowardly and disgusting reaction one could expect; or 2) attack the procedural issues rather than the substance - a tactic this administration has frequently taken over the past five years in the Padilla, Hamdi, Hamdan and other detainee cases. They have consistently adopted untenable constitutional positions, and held to those positions until no longer possible, then tried to escape the ramifications through legal trickery, always avoiding the merits. This administration is a constitutional nighmare, surpassing even the dismal constitutional record of the prior executive. Its an embarrassment to any true conservative who voted for these clowns.

The Plaintiff's MSJ included the following exhibits:

MOTION for Partial Summary Judgment by all plaintiffs. (Attachments: # 1 Index of Exhibits # 2 Exhibit A - President's Radio Address, 12/17/05# 3 Exhibit B - Excerpt from Alberto Gonzales and Michael Hayden Press Briefing, 12/19/05# 4 Exhibit C - Excerpt from Michael Hayden Address to National Press Club, 1/23/06# 5 Exhibit D - Excerpt from President?s News Conference, 12/19/05# 6 Exhibit E - Excerpt from James Taranta, A Strong Executive, Wall Street Journal, 1/28/06# 7 Exhibit F - Excerpt from Letter from William E. Moschella, Assistant Attorney General, 12/22/05# 8 Exhibit G - Excerpt from Alberto Gonzales, ?Ask the Whitehouse,? 1/25/06# 9 Exhibit H - Excerpt from Wartime Executive Power and the NSA?s Surveillance Authority: Hearing Before the Senate Judiciary Comm., 109th Cong. (2006)# 10 Exhibit I - Declaration of Larry Diamond# 11 Exhibit J - Declaration of Nancy Hollander# 12 Exhibit K - Declaration of Tara McKelvey# 13 Exhibit L - Declaration of William Swor)(Steinberg, Michael) (Entered: 03/09/2006)

None of the bolded exhibits were authenticated. And none of the bolded statements were made under oath. But Judge Taylor clearly relied upon them to determine that the Plaintiffs had standing. That was improper and should be an easy reversal on appeal.I'm also disappointed that more hasn't been made of the fact that these are international communications. I'll preface this with the fact that I don't do any 4th Amendment work but am merely attacking this using my residual knowledge from ConLaw and different items I have picked up through the years. So don't anyone jump down my throat it if there's some case out there that I haven't read before.

The 4th Amendment doesn't provide blanket protection from searches and seizures, it provides protection from unreasonable searches and seizures. There are essentially two things that have to be considered in order to determine whether there a warrant it required in order for the government to make a seach and seizure with respect to a communication. The exigency of the circumstances and the individual's expectation that the communication is not being monitored. The one I'd like to focus on with respect to this program is the individual's expectation that the communication is not being monitored. I believe that there are differing levels of constitutional protection for domestic and international calls specifically because constitutional protections do not extend to what other governments do in other countries.

If I am in Chicago and I call a client in Detroit, I know that the call is subject to the protections of the 4th Amendment. However, if I call someone in Saudi Arabia, that call is not completely subject to the protections of the 4th Amendment because the Saudis are not bound by the 4th Amendment. In other words, I have no expectation that my call to the KSA is not being monitored by the Saudis-or a Russian satellite for that matter. Therefore, if other governments are not constrained by the provisions of the 4th Amendment from monitoring these calls without a warrant, the US government should not be constrained by the warrant requirement either.

There is also a differing level of protection because the US government has the responsibility of policing the borders. The Supreme Court has already ruled that the US government has the right to inspect mail coming into the US without a warrant. While not exactly the same, this does provide further support for the warrantless search of electronic communications coming into the US.

 

[Poppa]

The President's public reaction...

QUESTION: Mr. President, in a Federal ruling yesterday that declared your "terrorists surveillance program" unconstitutional, the judge wrote that it was never the intent of the framers to give the president such unfettered control. How do you respond, sir, to opponents who say that this ruling is really the first nail in the coffin of your administration's legal strategy in the war on terror?

BUSH: I would say that those who herald this decision simply do not understand the nature of the world in which we live. You might remember, last week, working with the people in Great Britain, we disabled a plot -- people trying to come and kill -- kill people. The... this country of ours is at war and we must give those who are... whose responsibility it is to protect the United States, the tools necessary to protect this country in a time of war. The judge's decision was a... I strongly disagree with that decision. Strongly disagree. That's why I've instructed the Justice Department to appeal immediately and I believe out appeals will be upheld. We... I made my position clear about this war on terror and I... by the way, the enemy made their position clear, yet again, when they... when we are able to stop them. And the American people expect us to protect them and, therefore, I put this program in place. We believe, strongly believe, it's Constitutional. And if Al Qaeda is calling into the United States, we want to know why they're calling. And, so, I made my position clear. It will be interesting to see what other policy makers... how other policy makers react. Listen, thank y'all very much.

 

[larry_boy_44]

The President's public reaction...

QUESTION: Mr. President, in a Federal ruling yesterday that declared your "terrorists surveillance program" unconstitutional, the judge wrote that it was never the intent of the framers to give the president such unfettered control. How do you respond, sir, to opponents who say that this ruling is really the first nail in the coffin of your administration's legal strategy in the war on terror?

BUSH: I would say that those who herald this decision simply do not understand the nature of the world in which we live. You might remember, last week, working with the people in Great Britain, we disabled a plot -- people trying to come and kill -- kill people. The... this country of ours is at war and we must give those who are... whose responsibility it is to protect the United States, the tools necessary to protect this country in a time of war. The judge's decision was a... I strongly disagree with that decision. Strongly disagree. That's why I've instructed the Justice Department to appeal immediately and I believe out appeals will be upheld. We... I made my position clear about this war on terror and I... by the way, the enemy made their position clear, yet again, when they... when we are able to stop them. And the American people expect us to protect them and, therefore, I put this program in place. We believe, strongly believe, it's Constitutional. And if Al Qaeda is calling into the United States, we want to know why they're calling. And, so, I made my position clear. It will be interesting to see what other policy makers... how other policy makers react. Listen, thank y'all very much.

You know... I honestly doubt that most public speakers get what they say transcribed to the detail that President Bush gets it done to him... Most peole would have just written "people trying to come and kill people", or "I made my position clear" (no "We... I"), etc....it makes the quote humourous, but it isn't really fair since they don't do that to everyone else...

 

[pantagrapher]

The President's public reaction...

QUESTION: Mr. President, in a Federal ruling yesterday that declared your "terrorists surveillance program" unconstitutional, the judge wrote that it was never the intent of the framers to give the president such unfettered control. How do you respond, sir, to opponents who say that this ruling is really the first nail in the coffin of your administration's legal strategy in the war on terror?

BUSH: I would say that those who herald this decision simply do not understand the nature of the world in which we live. You might remember, last week, working with the people in Great Britain, we disabled a plot -- people trying to come and kill -- kill people. The... this country of ours is at war and we must give those who are... whose responsibility it is to protect the United States, the tools necessary to protect this country in a time of war. The judge's decision was a... I strongly disagree with that decision. Strongly disagree. That's why I've instructed the Justice Department to appeal immediately and I believe out appeals will be upheld. We... I made my position clear about this war on terror and I... by the way, the enemy made their position clear, yet again, when they... when we are able to stop them. And the American people expect us to protect them and, therefore, I put this program in place. We believe, strongly believe, it's Constitutional. And if Al Qaeda is calling into the United States, we want to know why they're calling. And, so, I made my position clear. It will be interesting to see what other policy makers... how other policy makers react. Listen, thank y'all very much.

You know... I honestly doubt that most public speakers get what they say transcribed to the detail that President Bush gets it done to him... Most peole would have just written "people trying to come and kill people", or "I made my position clear" (no "We... I"), etc....it makes the quote humourous, but it isn't really fair since they don't do that to everyone else...

 

[Yankee23Fan]

The President's public reaction...

QUESTION: Mr. President, in a Federal ruling yesterday that declared your "terrorists surveillance program" unconstitutional, the judge wrote that it was never the intent of the framers to give the president such unfettered control. How do you respond, sir, to opponents who say that this ruling is really the first nail in the coffin of your administration's legal strategy in the war on terror?

BUSH: I would say that those who herald this decision simply do not understand the nature of the world in which we live. You might remember, last week, working with the people in Great Britain, we disabled a plot -- people trying to come and kill -- kill people. The... this country of ours is at war and we must give those who are... whose responsibility it is to protect the United States, the tools necessary to protect this country in a time of war. The judge's decision was a... I strongly disagree with that decision. Strongly disagree. That's why I've instructed the Justice Department to appeal immediately and I believe out appeals will be upheld. We... I made my position clear about this war on terror and I... by the way, the enemy made their position clear, yet again, when they... when we are able to stop them. And the American people expect us to protect them and, therefore, I put this program in place. We believe, strongly believe, it's Constitutional. And if Al Qaeda is calling into the United States, we want to know why they're calling. And, so, I made my position clear. It will be interesting to see what other policy makers... how other policy makers react. Listen, thank y'all very much.

The funny part about this is that the judge in this case used stuff like this as evidence when she clearly shouldn't have. If you think this quote is funny, you should be seriously upset with the judge for using the same thing as unquestionable evidence.

 

[Yankee23Fan]

A trial on the state secrets issue?

No, she should have held an evidentiary hearing on the standing issue.

What would the evidence be? The facts are undisputed. If the law requires the plaintiffs to be actual wiretapping subjects, they lose and the case is dismissed. The identity of those potential plaintiffs is unknown. If the law allows these plaintiffs to sue because their work is chilled by the mere existence of the TSP, the case proceeds. Personally, I think this is an easy one.In any event, the standing issue is a cop-out. If the TSP is unconstitutional, parties whose rights have been violated obviously exist. The interesting issue is whether this program is unconstitutional, or even criminal. Since yesterday morning, I've seen those that oppose this decision take two positions: 1) attack the judge personally, the most weak-minded, low-rent, bottom-feeding, cowardly and disgusting reaction one could expect; or 2) attack the procedural issues rather than the substance - a tactic this administration has frequently taken over the past five years in the Padilla, Hamdi, Hamdan and other detainee cases. They have consistently adopted untenable constitutional positions, and held to those positions until no longer possible, then tried to escape the ramifications through legal trickery, always avoiding the merits. This administration is a constitutional nighmare, surpassing even the dismal constitutional record of the prior executive. Its an embarrassment to any true conservative who voted for these clowns.

The Plaintiff's MSJ included the following exhibits:

MOTION for Partial Summary Judgment by all plaintiffs. (Attachments: # 1 Index of Exhibits # 2 Exhibit A - President's Radio Address, 12/17/05# 3 Exhibit B - Excerpt from Alberto Gonzales and Michael Hayden Press Briefing, 12/19/05# 4 Exhibit C - Excerpt from Michael Hayden Address to National Press Club, 1/23/06# 5 Exhibit D - Excerpt from President?s News Conference, 12/19/05# 6 Exhibit E - Excerpt from James Taranta, A Strong Executive, Wall Street Journal, 1/28/06# 7 Exhibit F - Excerpt from Letter from William E. Moschella, Assistant Attorney General, 12/22/05# 8 Exhibit G - Excerpt from Alberto Gonzales, ?Ask the Whitehouse,? 1/25/06# 9 Exhibit H - Excerpt from Wartime Executive Power and the NSA?s Surveillance Authority: Hearing Before the Senate Judiciary Comm., 109th Cong. (2006)# 10 Exhibit I - Declaration of Larry Diamond# 11 Exhibit J - Declaration of Nancy Hollander# 12 Exhibit K - Declaration of Tara McKelvey# 13 Exhibit L - Declaration of William Swor)(Steinberg, Michael) (Entered: 03/09/2006)

None of the bolded exhibits were authenticated. And none of the bolded statements were made under oath. But Judge Taylor clearly relied upon them to determine that the Plaintiffs had standing. That was improper and should be an easy reversal on appeal.I'm also disappointed that more hasn't been made of the fact that these are international communications. I'll preface this with the fact that I don't do any 4th Amendment work but am merely attacking this using my residual knowledge from ConLaw and different items I have picked up through the years. So don't anyone jump down my throat it if there's some case out there that I haven't read before.

The 4th Amendment doesn't provide blanket protection from searches and seizures, it provides protection from unreasonable searches and seizures. There are essentially two things that have to be considered in order to determine whether there a warrant it required in order for the government to make a seach and seizure with respect to a communication. The exigency of the circumstances and the individual's expectation that the communication is not being monitored. The one I'd like to focus on with respect to this program is the individual's expectation that the communication is not being monitored. I believe that there are differing levels of constitutional protection for domestic and international calls specifically because constitutional protections do not extend to what other governments do in other countries.

If I am in Chicago and I call a client in Detroit, I know that the call is subject to the protections of the 4th Amendment. However, if I call someone in Saudi Arabia, that call is not completely subject to the protections of the 4th Amendment because the Saudis are not bound by the 4th Amendment. In other words, I have no expectation that my call to the KSA is not being monitored by the Saudis-or a Russian satellite for that matter. Therefore, if other governments are not constrained by the provisions of the 4th Amendment from monitoring these calls without a warrant, the US government should not be constrained by the warrant requirement either.

There is also a differing level of protection because the US government has the responsibility of policing the borders. The Supreme Court has already ruled that the US government has the right to inspect mail coming into the US without a warrant. While not exactly the same, this does provide further support for the warrantless search of electronic communications coming into the US.

She didn't focus all that much time on the actual wiretapping in the holding - probably because the plaintiff's provided no proof, and since their standing was weak to begin with, it wasn't the focus.She focused on the "chilling" factor. That these media people, lawyers etc couldn't speak to their clients or sources by telephone or internet because their sources would fear that they are being taped, and - this is actually in the holding - if they know they are on the terrorist watch list, they will be wary of talking on the phone if it might be recorded. The chilling nature of the program inhibits the lawyers and ournalists and scholars from doing their job and their research because these sources will now not cooperate.

I'm not sure I buy this at all, and this is the basis for standing in this case. This holding is going to be reversed. I don't see how it can't be.

 

[bueno]

From page 17 of the Diggs ruling:

Plaintiffs here contend that the TSP has interfered with their ability to carry out their professional responsibilities in a variety of ways, including that the TSP has had a significant impact on their ability to talk with sources, locate witnesses, conduct scholarship, engage in advocacy and communicate with persons who are outside of the United States, including in the Middle East and Asia.

Plaintiffs have submitted several declarations to that effect. For example, scholars and journalists such as plaintiffs Tara McKelvey, Larry Diamond, and Barnett Rubin indicate that they must conduct extensive research in the Middle East, Africa, and Asia, and must communicate with individuals abroad whom the United States government believes to be terrorist suspects or to be associated with terrorist organizations.

In addition, attorneys Nancy Hollander, William Swor, Joshua Dratel, Mohammed Abdrabboh, and Nabih Ayad indicate that they must also communicate with individuals abroad whom the United States government believes to be terrorist suspects or to be associated with terrorist organizations, and must discuss confidential information over the phone and email with their international clients.

Exactly the kind of stuff the government should be listening to. Communications with terrorists.

 

[whoknew]

From page 17 of the Diggs ruling:

Plaintiffs here contend that the TSP has interfered with their ability to carry out their professional responsibilities in a variety of ways, including that the TSP has had a significant impact on their ability to talk with sources, locate witnesses, conduct scholarship, engage in advocacy and communicate with persons who are outside of the United States, including in the Middle East and Asia.

Plaintiffs have submitted several declarations to that effect. For example, scholars and journalists such as plaintiffs Tara McKelvey, Larry Diamond, and Barnett Rubin indicate that they must conduct extensive research in the Middle East, Africa, and Asia, and must communicate with individuals abroad whom the United States government believes to be terrorist suspects or to be associated with terrorist organizations.

In addition, attorneys Nancy Hollander, William Swor, Joshua Dratel, Mohammed Abdrabboh, and Nabih Ayad indicate that they must also communicate with individuals abroad whom the United States government believes to be terrorist suspects or to be associated with terrorist organizations, and must discuss confidential information over the phone and email with their international clients.

Exactly the kind of stuff the government should be listening to. Communications with terrorists.

That's not the issue. The issue is whether they should be required to get a warrant to listen. Of course, I suspect standing will be a bigger issue.

 

[Yankee23Fan]

From page 17 of the Diggs ruling:

Plaintiffs here contend that the TSP has interfered with their ability to carry out their professional responsibilities in a variety of ways, including that the TSP has had a significant impact on their ability to talk with sources, locate witnesses, conduct scholarship, engage in advocacy and communicate with persons who are outside of the United States, including in the Middle East and Asia.

Plaintiffs have submitted several declarations to that effect. For example, scholars and journalists such as plaintiffs Tara McKelvey, Larry Diamond, and Barnett Rubin indicate that they must conduct extensive research in the Middle East, Africa, and Asia, and must communicate with individuals abroad whom the United States government believes to be terrorist suspects or to be associated with terrorist organizations.

In addition, attorneys Nancy Hollander, William Swor, Joshua Dratel, Mohammed Abdrabboh, and Nabih Ayad indicate that they must also communicate with individuals abroad whom the United States government believes to be terrorist suspects or to be associated with terrorist organizations, and must discuss confidential information over the phone and email with their international clients.

Exactly the kind of stuff the government should be listening to. Communications with terrorists.

That's not the issue. The issue is whether they should be required to get a warrant to listen. Of course, I suspect standing will be a bigger issue.

That's another problem with this case. The fed could have gotten a FISA warrant and the lawyer and his client still wouldn't know at all. The more you pick apart the standing issues, it's clear this is going to get torn to pieces on appeal. I just don't see how it can be allowed to stand.

 

[bueno]

From page 17 of the Diggs ruling:

Plaintiffs here contend that the TSP has interfered with their ability to carry out their professional responsibilities in a variety of ways, including that the TSP has had a significant impact on their ability to talk with sources, locate witnesses, conduct scholarship, engage in advocacy and communicate with persons who are outside of the United States, including in the Middle East and Asia.

Plaintiffs have submitted several declarations to that effect. For example, scholars and journalists such as plaintiffs Tara McKelvey, Larry Diamond, and Barnett Rubin indicate that they must conduct extensive research in the Middle East, Africa, and Asia, and must communicate with individuals abroad whom the United States government believes to be terrorist suspects or to be associated with terrorist organizations.

In addition, attorneys Nancy Hollander, William Swor, Joshua Dratel, Mohammed Abdrabboh, and Nabih Ayad indicate that they must also communicate with individuals abroad whom the United States government believes to be terrorist suspects or to be associated with terrorist organizations, and must discuss confidential information over the phone and email with their international clients.

Exactly the kind of stuff the government should be listening to. Communications with terrorists.

That's not the issue. The issue is whether they should be required to get a warrant to listen. Of course, I suspect standing will be a bigger issue.

That's another problem with this case. The fed could have gotten a FISA warrant and the lawyer and his client still wouldn't know at all. The more you pick apart the standing issues, it's clear this is going to get torn to pieces on appeal. I just don't see how it can be allowed to stand.

I don't think the government even tried to win the case at this level. Get it up to Circuit or SCOTUS level and this case will be torn apart and thrown out.

 

[Winston Smith]

From page 17 of the Diggs ruling:

Plaintiffs here contend that the TSP has interfered with their ability to carry out their professional responsibilities in a variety of ways, including that the TSP has had a significant impact on their ability to talk with sources, locate witnesses, conduct scholarship, engage in advocacy and communicate with persons who are outside of the United States, including in the Middle East and Asia.

Plaintiffs have submitted several declarations to that effect. For example, scholars and journalists such as plaintiffs Tara McKelvey, Larry Diamond, and Barnett Rubin indicate that they must conduct extensive research in the Middle East, Africa, and Asia, and must communicate with individuals abroad whom the United States government believes to be terrorist suspects or to be associated with terrorist organizations.

In addition, attorneys Nancy Hollander, William Swor, Joshua Dratel, Mohammed Abdrabboh, and Nabih Ayad indicate that they must also communicate with individuals abroad whom the United States government believes to be terrorist suspects or to be associated with terrorist organizations, and must discuss confidential information over the phone and email with their international clients.

Exactly the kind of stuff the government should be listening to. Communications with terrorists.

That's not the issue. The issue is whether they should be required to get a warrant to listen. Of course, I suspect standing will be a bigger issue.

That's another problem with this case. The fed could have gotten a FISA warrant and the lawyer and his client still wouldn't know at all. The more you pick apart the standing issues, it's clear this is going to get torn to pieces on appeal. I just don't see how it can be allowed to stand.

I don't think the government even tried to win the case at this level. Get it up to Circuit or SCOTUS level and this case will be torn apart and thrown out.

That makes absolutely no sense.

 

[pettifogger]

I'm reading this thing again and I can't believe I missed this:The fed argued that they couldn't hand over evidence or prove their argument because it would be divulging state secrets. The judge actually found in her ruling that the President and the administration had said enough about the program in public to make a ruling.In other words, she based at least some parts of her ruling on political speeches, press releases and the like. On out of court statements that aren't close to being under oath. So now, political speeches and press releases are admittable evidence to prove the truth of the matter they assert?Ah, no.The more I read this ruling, the more I know this will be destroyed on appeal if the fed appeals it.

I think the issues are (1) whether there was a knowing waiver of the secrecy and then (2) whether there is admissible evidence. I'm pretty sure the AG's testimony in front of Congress was under oath, so a transcript should be admissible.

 

[Christo]

I don't think the government even tried to win the case at this level. Get it up to Circuit or SCOTUS level and this case will be torn apart and thrown out.

That makes absolutely no sense.

I just read the redacted version of the government's brief. It's very clear the government tried to win.

 

[bueno]

I don't think the government even tried to win the case at this level. Get it up to Circuit or SCOTUS level and this case will be torn apart and thrown out.

That makes absolutely no sense.

I just read the redacted version of the government's brief. It's very clear the government tried to win.

The only defense that the government presented in this lawsuit was a motion to dismiss it on the basis of the state secrets evidentiary privilege and on the plaintiffs' lack of standing. I think they're holding back their big guns for appeals.It also sounds like that in order to prove that they had standing, the plaintiffs had to admit to having ties with suspected terrorists. Should be easy to get a wiretap on their phones now, thank you.

 

[CletiusMaximus]

A trial on the state secrets issue?

No, she should have held an evidentiary hearing on the standing issue.

What would the evidence be? The facts are undisputed. If the law requires the plaintiffs to be actual wiretapping subjects, they lose and the case is dismissed. The identity of those potential plaintiffs is unknown. If the law allows these plaintiffs to sue because their work is chilled by the mere existence of the TSP, the case proceeds. Personally, I think this is an easy one.In any event, the standing issue is a cop-out. If the TSP is unconstitutional, parties whose rights have been violated obviously exist. The interesting issue is whether this program is unconstitutional, or even criminal. Since yesterday morning, I've seen those that oppose this decision take two positions: 1) attack the judge personally, the most weak-minded, low-rent, bottom-feeding, cowardly and disgusting reaction one could expect; or 2) attack the procedural issues rather than the substance - a tactic this administration has frequently taken over the past five years in the Padilla, Hamdi, Hamdan and other detainee cases. They have consistently adopted untenable constitutional positions, and held to those positions until no longer possible, then tried to escape the ramifications through legal trickery, always avoiding the merits. This administration is a constitutional nighmare, surpassing even the dismal constitutional record of the prior executive. Its an embarrassment to any true conservative who voted for these clowns.

Standing in Constitutional Law is not a cop-out.

Deciding a case like this on standing is a cop-out. The standing analysis in these cases is so vague and malable that its only purpose is to allow courts to throw out cases they don't want to address on the merits. There are a few rare circumstances in which standing matters, but this is not one of them. There is a very important legal issue that the Court should decide on its merits in this case - are these warrantless wiretaps legal or illegal under the constitution and FISA? Standing in this context is a meaningless technicality because we all know what the government is doing and if illegal, there is no question that the affected parties' rights are being violated. The issue is clearly ripe and fully developed, purely legal, and should be decided on its merits. Surely no one will be satisfied if the case is thrown out on a standing issue and the government's conduct is never subjected to judicial scrutiny.

 

[Yankee23Fan]

A trial on the state secrets issue?

No, she should have held an evidentiary hearing on the standing issue.

What would the evidence be? The facts are undisputed. If the law requires the plaintiffs to be actual wiretapping subjects, they lose and the case is dismissed. The identity of those potential plaintiffs is unknown. If the law allows these plaintiffs to sue because their work is chilled by the mere existence of the TSP, the case proceeds. Personally, I think this is an easy one.In any event, the standing issue is a cop-out. If the TSP is unconstitutional, parties whose rights have been violated obviously exist. The interesting issue is whether this program is unconstitutional, or even criminal. Since yesterday morning, I've seen those that oppose this decision take two positions: 1) attack the judge personally, the most weak-minded, low-rent, bottom-feeding, cowardly and disgusting reaction one could expect; or 2) attack the procedural issues rather than the substance - a tactic this administration has frequently taken over the past five years in the Padilla, Hamdi, Hamdan and other detainee cases. They have consistently adopted untenable constitutional positions, and held to those positions until no longer possible, then tried to escape the ramifications through legal trickery, always avoiding the merits. This administration is a constitutional nighmare, surpassing even the dismal constitutional record of the prior executive. Its an embarrassment to any true conservative who voted for these clowns.

Standing in Constitutional Law is not a cop-out.

Deciding a case like this on standing is a cop-out. The standing analysis in these cases is so vague and malable that its only purpose is to allow courts to throw out cases they don't want to address on the merits. There are a few rare circumstances in which standing matters, but this is not one of them. There is a very important legal issue that the Court should decide on its merits in this case - are these warrantless wiretaps legal or illegal under the constitution and FISA? Standing in this context is a meaningless technicality because we all know what the government is doing and if illegal, there is no question that the affected parties' rights are being violated. The issue is clearly ripe and fully developed, purely legal, and should be decided on its merits. Surely no one will be satisfied if the case is thrown out on a standing issue and the government's conduct is never subjected to judicial scrutiny.

Every lawsuit is important to the plaintiff and the people that agree with the plaintiff. In many cases, especially criminal, we "all know" that the accused is guilty of everything he is accused of and probably more. We all know that people are affected by crimes and illegal policies and practices all the time. And there is a reason why if you don't have standing to bring any suit regarding these matters that you don't get to bring the suit. You can be upset at the technicalities of the law all you want, it doesn't change that fact.For someone so seemingly pissed with the fact that the administration bent or ignored the law to suit their purposes, you are sure are willing to bend or ignore any law you can find to suit yours.

 

[whoknew]

A trial on the state secrets issue?

No, she should have held an evidentiary hearing on the standing issue.

What would the evidence be? The facts are undisputed. If the law requires the plaintiffs to be actual wiretapping subjects, they lose and the case is dismissed. The identity of those potential plaintiffs is unknown. If the law allows these plaintiffs to sue because their work is chilled by the mere existence of the TSP, the case proceeds. Personally, I think this is an easy one.In any event, the standing issue is a cop-out. If the TSP is unconstitutional, parties whose rights have been violated obviously exist. The interesting issue is whether this program is unconstitutional, or even criminal. Since yesterday morning, I've seen those that oppose this decision take two positions: 1) attack the judge personally, the most weak-minded, low-rent, bottom-feeding, cowardly and disgusting reaction one could expect; or 2) attack the procedural issues rather than the substance - a tactic this administration has frequently taken over the past five years in the Padilla, Hamdi, Hamdan and other detainee cases. They have consistently adopted untenable constitutional positions, and held to those positions until no longer possible, then tried to escape the ramifications through legal trickery, always avoiding the merits. This administration is a constitutional nighmare, surpassing even the dismal constitutional record of the prior executive. Its an embarrassment to any true conservative who voted for these clowns.

Standing in Constitutional Law is not a cop-out.

Deciding a case like this on standing is a cop-out. The standing analysis in these cases is so vague and malable that its only purpose is to allow courts to throw out cases they don't want to address on the merits. There are a few rare circumstances in which standing matters, but this is not one of them. There is a very important legal issue that the Court should decide on its merits in this case - are these warrantless wiretaps legal or illegal under the constitution and FISA? Standing in this context is a meaningless technicality because we all know what the government is doing and if illegal, there is no question that the affected parties' rights are being violated. The issue is clearly ripe and fully developed, purely legal, and should be decided on its merits. Surely no one will be satisfied if the case is thrown out on a standing issue and the government's conduct is never subjected to judicial scrutiny.

I don't understand how the constitutional jurisdiction of a court is a "meaningless technicality." Federal courts are courts of limited jurisdiction, as I am sure you know. Whether a plaintiff has standing is a vital consideration of that jurisdiction. I'm guessing you already know all of this. Assuming you do, I don't understand your position that we can just brush aside standing (and S.Ct. precedent) because we want to decide the merits of the case. Frankly, seems to me that Lujan is pretty close to controlling on this issue.

 

[Christo]

I don't think the government even tried to win the case at this level. Get it up to Circuit or SCOTUS level and this case will be torn apart and thrown out.

That makes absolutely no sense.

I just read the redacted version of the government's brief. It's very clear the government tried to win.

The only defense that the government presented in this lawsuit was a motion to dismiss it on the basis of the state secrets evidentiary privilege and on the plaintiffs' lack of standing. I think they're holding back their big guns for appeals.

Well, you're wrong. Any issue that's not raised in the district court is waived on appeal.

 

[Christo]

Standing in Constitutional Law is not a cop-out.

Deciding a case like this on standing is a cop-out. The standing analysis in these cases is so vague and malable that its only purpose is to allow courts to throw out cases they don't want to address on the merits. There are a few rare circumstances in which standing matters, but this is not one of them. There is a very important legal issue that the Court should decide on its merits in this case - are these warrantless wiretaps legal or illegal under the constitution and FISA? Standing in this context is a meaningless technicality because we all know what the government is doing and if illegal, there is no question that the affected parties' rights are being violated. The issue is clearly ripe and fully developed, purely legal, and should be decided on its merits. Surely no one will be satisfied if the case is thrown out on a standing issue and the government's conduct is never subjected to judicial scrutiny.

I love how people are so quick to ignore one constitutional issue in favor of another just because it's not as sexy.

 

[SaintsInDome2006]

which she says violates the rights to free speech and privacy

Please please please will someone tell me where in the heck in the U.S. Constitution it says that there is a Right to PrivacyWhere do they make this crap up?

It's like we can make tender out any thing we want all over again. Instead of following the constitution:

No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.

Griswold v. ConnecticutDecision

The foregoing cases suggest that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. See Poe v. Ullman, 367 U.S. 497, 516-522 (dissenting opinion). Various guarantees create zones of privacy. The right of association contained in the penumbra of the First Amendment is one, as we have seen. The Third Amendment, in its prohibition against the quartering of soldiers "in any house" in time of peace without the consent of the owner, is another facet of that privacy. The Fourth Amendment explicitly affirms the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." The Fifth Amendment, in its Self-Incrimination Clause, enables the citizen to create a zone of privacy which government may not force him to surrender to his detriment. The Ninth Amendment provides: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

The Fourth and Fifth Amendments were described in Boyd v. United States, 116 U.S. 616, 630, as protection against all governmental invasions "of the sanctity of a man's home and the privacies of life."

• We recently referred [p485] in Mapp v. Ohio, 367 U.S. 643, 656, to the Fourth Amendment as creating a "right to privacy, no less important than any other right carefully an particularly reserved to the people." See Beaney, The Constitutional Right to Privacy, 1962 Sup.Ct.Rev. 212; Griswold, The Right to be Let Alone, 55 Nw.U.L.Rev. 216 (1960).We have had many controversies over these penumbral rights of "privacy and repose." See, e.g., Breard v. Alexandria, 341 U.S. 622, 626, 644; Public Utilities Comm'n v. Pollak, 343 U.S. 451; Monroe v. Pape, 365 U.S. 167; Lanza v. New York, 370 U.S. 139; Frank v. Maryland, 359 U.S. 360; Skinner v. Oklahoma, 316 U.S. 535, 541. These cases bear witness that the right of privacy which presses for recognition here is a legitimate one.
  

Third Amendment perhaps is finally getting the attention it deserves:

Quartering spyware troops in the digital age: Column The Third Amendment keeps a low profile, but it is time to revisit who and what we quarter.In 1893, historian Frederick Jackson Turner published a famous paper on the closing of the American frontier. The last unsettled areas, he said, were being populated, and that meant the end of an era.

I think that something a bit like that is happening in my field of constitutional law. The last part of the Bill of Rights left almost untouched — the Third Amendment — is now becoming the subject of substantial academic commentary, with a symposium on the amendment, which I attended, this past weekend held by the Tennessee Law Review.

The Tennessee Law Review published the very first law review article on the Third Amendment back in 1949. But there weren't very many to follow: a handful, over many decades. Maybe that's because the Third Amendment just plain works. It provides: "No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law."

That doesn't happen much — The Onion ran a parody piece some years ago entitled "Third Amendment Rights Group Celebrates Another Successful Year" — and so it may just be that the Third Amendment is the only part of the Bill of Rights that really works. Except that it may not be working the way that we think.

The only Supreme Court case in which the Third Amendment did any heavy lifting is Griswold v. Connecticut, a case that's not about troop-quartering, but about birth control. The Supreme Court held that the Third Amendment's "penumbra" (a legal term that predates the Griswold case) extended to protecting the privacy of the home from government intrusions. "Would we," asked the court, "allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives?" The very idea, said the court, was "repulsive."

Likewise, the U.S. Court of Appeals for the Second Circuit held in Engblom v. Carey that the Third Amendment protects a "fundamental right to privacy" in the home. Since then, courts haven't done much to flesh these holdings out, but I wonder if they should. In the 18th century, when the Third Amendment was drafted, "troop quartering" meant literally having troops move into your house to live at your expense and sleep in your beds. It destroyed any semblance of domestic privacy, opening up conversations, affection, even spats to the observation and participation of outsiders. It converted a home into an arena.

Today we don't have that, but we have numerous intrusions that didn't exist in James Madison's day: Government spying on phones, computers, and video — is spyware on your computer like having a tiny soldier quartered on your hard drive? — intrusive regulations on child-rearing and education, the threat of dangerous "no-knock" raids by soldierly SWAT teams that break down doors first and ask questions later.

The Third Amendment hasn't been invoked in these cases — well, actually, it has, in the case of a SWAT team in Henderson, Nev., that took over a family home so that it could position itself against a neighbor's house — but maybe it should be. At least, maybe we should go farther in recognizing a fundamental right of privacy in people's homes.

At common law, the saying was that a man's home is his castle, or, as William Pitt put itin 1763: "The poorest man may in his cottage bid defiance to all the forces of the crown. It may be frail, its roof may shake; the wind may blow through it; the storms may enter, the rain may enter — but the King of England cannot enter."

In this post-drug war era of no-knock raids, SWAT teams, and governmental spying, it's sad to think that we are, in fact, less secure in our homes than "the poorest man" in his own cottage was under the English kings we once revolted against. And if that's the case, maybe the Third Amendment isn't working as well as we think.

I think that courts — and legislators, and citizens — need to work harder to protect the sanctity of the home against official intrusions. We're already spied on and regulated throughout the day. We should, at least, be able to relax behind our own doors.

Glenn Harlan Reynolds, a University of Tennessee law professor, is the author of The New School: How the Information Age Will Save American Education from Itself.

http://www.usatoday.com/story/opinion/2015/03/01/constitutional-law-third-amendment-quartering-column/24220593/

 

[Christo]

Interesting

 

[chauncey]

Cliff notes?

 

[Leviathan]

Dunno...

I blame Woodrow Wilson's wife.