Spy, Spy Away

David Weigel | July 6, 2007

So much for the lawsuit against the NSA wiretapping program:

In a 2-1 decision, two Republican appointees on the 6th U.S. Circuit Court of Appeals ruled against allowing the lawsuit. A Democratic appointee judge disagreed, saying it was clear to him that the post-911 warrantless surveillance program aimed at uncovering terrorist activity violated the Foreign Intelligence Surveillance Act of 1978.

Although the Bush administration said in January the program is now overseen by a special federal intelligence court, opponents said that without a court order, the president could resume the spying outside judicial authority at any time.

The ruling Friday vacates an order by a U.S. District Court in Detroit last August that found the surveillance unconstitutional, violating rights to privacy and free speech and the separation of powers.

Reason coverage of the NSA scandal starts here.

Comments

|7.6.07 @ 5:02PM|#

Fuck.

ATT NSA OP#321425|7.6.07 @ 5:06PM|#

Fuck.

Watch yer mouth.

|7.6.07 @ 5:06PM|#

At this point, one's only defense against the government is being spied on by your nosy neighbor -- providing he or she produces a record of any government malfeasance and posts it on youtube.

Kaligula|7.6.07 @ 5:21PM|#

There is still the EFF's class action lawsuit against AT&T that is ongoing...

Dick Cheney|7.6.07 @ 5:27PM|#

In your FACE! Jihadi liberaltarians!

|7.6.07 @ 5:36PM|#

The courts uphold the blatantly unconstitutional position of a presidential administration so corrupt that it proudly admits when it won't comply with the law, and so incompetent that after six years it still hasn't caught the guys who attacked us on 9/11 and is losing the war in Iraq even though they control the most powerful military in the world. God help us if we ever elect a power-mad president with some actual smarts who decides to use the new tools Bush's judges have given him.

Dubya...worst president in U.S. history.

|7.6.07 @ 5:59PM|#

What isn't in the post is that the reason for the dismissal was lack of standing.

From this article

U.S. Circuit Judge Julia Smith Gibbons, one of the two Republican appointees who ruled against the plaintiffs, said they failed to show they were subject to the surveillance.

The court ruling means that if Bush restarts the program, ordinary Americans will have a much harder time challenging it in court. The court ruled that, unless people can prove they're being eavesdropped on, they will have a hard time suing.

It's a secret program whose details aren't being released. So by the court's logic, no one will ever have standing because no one can prove they have been harmed because it's a fucking secret program.

|7.6.07 @ 6:02PM|#

"It's a secret program whose details aren't being released. So by the court's logic, no one will ever have standing because no one can prove they have been harmed because it's a fucking secret program."

Maybe Gaius Marius was right.

...anybody seen him lately?

SJE|7.6.07 @ 6:09PM|#

Lets not get too down!

The judges seem to agree that the NSA's actions were unconstitutional, but dismissed the suit for lack of standing. To have a right to appear in court, you must show you have suffered an injury.

The ACLU plead that it DIDNT send communications overseas because of the fear that it would be intercepted: i.e. fear that it might suffer a harm.

Of course, the irony is that if they ACLU had sent emails overseas, to show harm they would kinda have to show that the NSA actually intercepted their communications, which of course is secret information known only to the NSA and, of course, Dick Cheney.

I dont think we have seen the last of either this case.

MichaelB|7.6.07 @ 6:19PM|#

fear of a potential injury is hardly sufficient for standing. As much as I dislike this program, the decision was correct.

|7.6.07 @ 6:26PM|#

It is often safer to be in chains than to be free.

(Franz Kafka (1883-1924), Czech novelist, short-story writer. The Advocate, in The Trial, ch. 8 (1925, trans. 1935).

thoreau|7.6.07 @ 6:39PM|#

Like ChicagoTom said, their ruling that nobody has standing is the ultimate bullshit when you're dealing with a crime that's kept secret.

Ken-

Maybe Gaius Marius was right.

...anybody seen him lately?

Maybe they already got him. And I'm only half joking.

|7.6.07 @ 7:02PM|#

"Like ChicagoTom said, their ruling that nobody has standing is the ultimate bullshit when you're dealing with a crime that's kept secret."

Well then I think the proper procedure is to plead standing based on communications actually being intercepted, and then ask for limited discovery to prove it. That would get interesting...

|7.6.07 @ 7:30PM|#

Tempest in a teapot, if only because it is sheer unicornitopian folly to believe that a court order prohibiting this program would do anything but make the administration hide it better.

|7.6.07 @ 7:35PM|#

I dunno about the legal mumbo jumbo. But I DO know that it's taking our government an awful long time to call the executive branch to heel for blatantly breaking the law.

Not good.

|7.6.07 @ 8:09PM|#

I honestly don't know what you guys are upset about. Reason Editor Katherine Mangu-Ward is on record as saying that government cameras in public spaces are A-OKay with her and with good libertarians. No one seems too upset with about that. So I don't know what's wrong then with secret wiretapping.

By the way, I am upset about that. But when I mention it, my posts mysteriously disappear. It must be the NSA doing this.

|7.6.07 @ 10:38PM|#

By the way, I am upset about that. But when I mention it, my posts mysteriously disappear. It must be the NSA doing this.

Paranoia...

will destroy ya...

http://www.youtube.com/watch?v=FXv5UsSLIiA

thoreau|7.6.07 @ 11:05PM|#

I dunno about the legal mumbo jumbo. But I DO know that it's taking our government an awful long time to call the executive branch to heel for blatantly breaking the law.

Yep.

I agree with Greg that they'll just hide it better if there's a court order, but one can hope that if enough legal pressure comes to bear somebody will eventually decide that it's time to testify.

That may seem unlikely, but keep in mind that it's basically amateur hour at the top of this administration, with crazy ideologues pulling policies out of their asses. The career professionals in the civil service are not happy. Now, there are many good criticisms to level at the careerists in the civil service, but the fact remains that they are pissed. And eventually, one of them might just decide to testify...

oh no|7.7.07 @ 3:18AM|#

I am sure the government is watching me, listening to me, and trying to learn what I know. They are reading this list, and making a list from it, of us. I hope I'm not being ignored, as if I am nothing important.

|7.7.07 @ 3:47AM|#

Maybe this'll cost me my limited Libertarian cred., but:
1. As long as there are going to be nation-states, I don't see why conversations across them should have an expectation of privacy. If they can body cavity search you for condoms full of coke with probable cause in customs, I can't see why digital (or analog) data should be better protected than your colon when it crosses a frontier.
2. As soon as the govt brings charges based on an illegal wiretap, bam! you've got standing. So, no big loss.

|7.7.07 @ 4:17AM|#

About time reason was used in a court decision.

oldnumberseven|7.7.07 @ 8:08AM|#

So, on the history channel, they showed a 6 or 8, bad memory, part doc on the Revolution, it was not as well made as 'The Civil War,' but worth watching. It got me thinking about what it meant to be a patriot. The founding fathers built a government based upon dissent, and certain unalienable rights. I have never had a British soldier quartered in my house, and I have no idea if the NSA is reading my e-mails, or listening in on my phone calls, but I know I don't like it all around. That one bastard said 'my country right or wrong,' and ruined everything.

Where the hell are Thomas Paine, and Patrick Henry when we need them? Where are Adams, and Jefferson, Franklin, and Washington? Do they have blogs?

|7.7.07 @ 10:14AM|#

I'm with supermike. Phone calls are too easy to intercept these days to insist on privacy. Jim McDermott can attest to the ease of lisening in on conversations you really want to hear. And you don't even have to work for the government (directly) to do it.

|7.7.07 @ 11:22AM|#

God help us if we ever elect a power-mad president with some actual smarts who decides to use the new tools Bush's judges have given him.

Like I said, in 2009 when Hillary is president conservatives, who mock people now who complain about increased executive power, will be screaming about how Hillary is acting like a dictator, and how are civil liberties are being trampled on. The Democrats, who act like they actually care about civil liberties now, will support anything Hillary does. Its going to be fun to watch.

|7.7.07 @ 4:03PM|#

What makes you think liberals like Hillary Clinton?

Have you ever read a liberal blog?

|7.7.07 @ 4:23PM|#

Joe-

I said "Democrats" not "liberals".

The hardcore liberals don't like Hillary Clinton, but if she wins the nomination and the presidency I have every reason to believe they would support her. And I don't think they will get nearly as upset if she asks for increased power vs. "BushCo" asking for it.

I hope I'm proved wrong, but I won't hold my breath.

|7.7.07 @ 6:56PM|#

If the founders of our republic were alive, they would either be weeping or pissed to the max, or both.

|7.7.07 @ 7:06PM|#

Cesar, joe,

I'll predict that if Hillary makes prez, she will indeed violate our civil liberties with these expanded powers, and that when she does, the folks at FOX news will be cheering her on.

|7.7.07 @ 9:05PM|#

Rick,

The Rupert Network is certainly in her corner.

Fox News has gotten quite a bit of experience during the Immigration Bill debate at playing both sides of a Republican civil war. I could see the same thing happening over some theoretical set of "counter-terror" measures President Hillary proposes.

Cesar, I doubt liberals would support such intrusions into civil liberties as we've seen from the Commander Guy and Darth Cheney from any president.

What I fear is that, like her husband, she'd pick up centrist and center-right support at an even faster rate than she loses the liberals. Under that scenario, I could see her getting away with serious encroachments, but over the objections of liberals.

|7.7.07 @ 9:29PM|#

The Rupert Network is certainly in her corner.


I agree with Joe, I actually heard she has become good friends with Rupert Murdoch and is courting FNC. Which really disturbs me, personally.

|7.8.07 @ 12:01AM|#

Rupert has held two fundraisers for Hillary that I'm aware of. I think that the she endeared herself to the Fox/neocon crowd when, before the 2006 elections, she was posturing hawkish on Iraq. Anything that's pro an interventionist policy in the Mideast and pro the Israeli government/Likudnik foreign agenda is cool with that crowd.

|7.8.07 @ 2:24AM|#

...Shoulda been: "I think that she endeared herself to the Fox/neocon crowd when, before the 2006 elections, she was posturing hawkish on Iraq."

Please pardon my needless "the" after "that". There, I feel better now.

|7.8.07 @ 4:47AM|#

the founding fathers would be wondering why we have not formed militias and attacked our own govmint en mass, I believe.

They didnt know that apache attack helis and such would exist.

|7.8.07 @ 10:37AM|#

I'm in love with our potential dissent
I'll buy the torch if you can pay for the rent
Fly it high with the good book in hand
We're all in love with the promised land

http://www.youtube.com/watch?v=eLXM8EdKtko

|7.8.07 @ 11:50AM|#

"I agree with Joe, I actually heard she has become good friends with Rupert Murdoch and is courting FNC. Which really disturbs me, personally."

Murdoch tends to cultivate good relations with whoever is or might one day be in a position of power.

SJE|7.8.07 @ 6:38PM|#

Re: the legal mumbo jumbo of "Standing"

As I am studying for the Bar, I should know all this stuff. Standing is legal mumbo jumbo, but it is surprisingly important these days.

Like other things in this great nation, "standing" has a great foundation, but has been used to deny us our rights.

The whole idea of "standing" is that the court should not waste its time with people who have not been injured.

The problem is that "standing" is often used to defeat a lot of claims that people would think are legitimate.

This is a BIG problem in environmental cases. If a company dumps, say, heavy metals in a river, can you sue? If you are a fish in that river, you would have standing, except for the fact that you are a fish (only humans allowed). If you live near the river, but never drink the water or swim in the river, does the pollution affect you. It can get pretty hard to show you have been harmed. THus, even when there is a very clear case of wrong (the company clearly is at fault), how do you enforce the law? DO you have to actually get poisoned? If no one has standing, then there the law is effectively toothless.

I will bet that standing will be raised in the case of the farmers who want to grow hemp. Have they actually been harmed by the government's refusal to allow them to grow hemp? (I think so, but don't count on the court to throw it out).

How about overactive SWAT teams. Generally, the only people who have standing are those actually harmed: they might be dead, or drugs might have been planted on them, etc. Thus, while the community has an interest in stopping SWAT abuses, only those actually targeted in a raid have standing. Those people are more often poor and marginalized, and are not in much of a position to bring suit.

The source of this problem is partly the courts, partly the executive (many of these cases are brought when an agency refuses to enforce a law), but mostly the congress. Congress passes all these laws, but fails to create a strong basis for suit.