Supreme Court rejects domestic wiretap appeal

[KG4JYD]

The U.S. Supreme Court on Tuesday declined to intervene in an appeal of a lawsuit accusing the National Security Agency of illicit spying on millions of Americans communicating with foreigners.

The American Civil Liberties Union, which filed suit in 2006 on behalf of journalists, scholars, criminal defense attorneys and Islamic-Americans, had sought review of a 2-1 decision last summer by the U.S. Court of Appeals for the Sixth Circuit to throw out its case.

The ACLU obtained a victory at the trial court level in August 2006. A federal judge in Michigan ruled that the NSA's once-secret terrorist surveillance program, which operated without court orders, "ran roughshod" over Americans' constitutional rights Americans and violated federal wiretapping law.

But the Sixth Circuit overturned that ruling on narrow procedural grounds. It determined that the ACLU and the plaintiffs didn't have legal standing to bring the suit in the first place because they hadn't shown adequate evidence that they have been "personally" subject to the eavesdropping program. The judges did not, however, take a position whether the spying program itself was legal.


Read the rest of the article here:
http://www.news.com/8301-10784_3-9874526-7.html?tag=newsmap

[KG4JYD]

As scummy as the ACLU is on many aspects, I really wish they had won.

[n0ov]

Good call on their part.

[KB9YCO]

Ah yes, once again the "guilty until proven innocent" crowd wins on a technicality. I'm not surprised, this seems to be the way the law in general is going; prove your innocence instead of them proving your guilt. Those that think that it's a good idea don't realize that they're opening the door for so much more to happen, and happen it will since "the people" don't seem to raise a cry of an alarm, and those that do are labeled as being "unpatriotic", "pro-terrorist" or "radical" for believing in accountability between the branches of government. It's truly a sad state of affairs when we are all considered guilty until proven innocent by a segment of the government accountable only to themselves. Truly un-American and definitely a step backwards in terms of our "guaranteed" rights.

[N8UZE]

Ah yes, once again the "guilty until proven innocent" crowd wins on a technicality. I'm not surprised, this seems to be the way the law in general is going; prove your innocence instead of them proving your guilt. Those that think that it's a good idea don't realize that they're opening the door for so much more to happen, and happen it will since "the people" don't seem to raise a cry of an alarm, and those that do are labeled as being "unpatriotic", "pro-terrorist" or "radical" for believing in accountability between the branches of government. It's truly a sad state of affairs when we are all considered guilty until proven innocent by a segment of the government accountable only to themselves. Truly un-American and definitely a step backwards in terms of our "guaranteed" rights.

One could as easily say that those who filed the suit belong to the "guilty until proven innocent" mindset and that they lost. They assumed that the government had illegally wiretapped their phones. They had no proof of wiretaps. Therefore no grounds to bring a suit.

The way our entire system is designed is that laws can only be challenged by those who can prove that they were personally and directly affected by the law. Even blatantly unconstitutional laws can only be challenged after some one has been impacted by such a law.

Those who filed these suits were in essence saying "I think that I might have been but have no proof that I was wiretapped therefore I want the government to be forced to open its files to show that they did or did not tap my phone". That approach violates our entire system. And the argument that they cannot get proof without forcing the government to open its files is specious. The technology exists to determine if a phone is being tapped.

[W3MIV]

One could as easily say that those who filed the suit belong to the "guilty until proven innocent" mindset and that they lost. They assumed that the government had illegally wiretapped their phones. They had no proof of wiretaps. Therefore no grounds to bring a suit.

The way our entire system is designed is that laws can only be challenged by those who can prove that they were personally and directly affected by the law. Even blatantly unconstitutional laws can only be challenged after some one has been impacted by such a law.

Those who filed these suits were in essence saying "I think that I might have been but have no proof that I was wiretapped therefore I want the government to be forced to open its files to show that they did or did not tap my phone". That approach violates our entire system. And the argument that they cannot get proof without forcing the government to open its files is specious. The technology exists to determine if a phone is being tapped.

You are correct, but the points may be a bit too esoteric for some of our regulars to follow. Not to put too fine a point on it, many would rather keep their own ideas of what is happening and why, and thus maintain the full flavor of the conspiracies they imagine as everyday happenings.

[KG4JYD]

They assumed that the government had illegally wiretapped their phones. They had no proof of wiretaps. Therefore no grounds to bring a suit.That's because the government didn't allow them to prove it. The government would not open up and answer their claims.

Pretty sorry, eh? Someone is pretty sure they are being illegally wiretapped which is unconstitutional, so they sue, and the plantiff tells the court "they are not allowed to look to see if their case has merit" and the court actually buys that line of BS.


It's a sad day in the US.

[KD6NIG]

Everyone is shocked that the third branch of the government refused to question something passed by the other 2 branches?

I mean....come on! :p

[N8UZE]

That's because the government didn't allow them to prove it. The government would not open up and answer their claims.

Pretty sorry, eh? Someone is pretty sure they are being illegally wiretapped which is unconstitutional, so they sue, and the plantiff tells the court "they are not allowed to look to see if their case has merit" and the court actually buys that line of BS.


It's a sad day in the US.

No it is not sorry. It is the same principle applied to all court cases. You have to have evidence first. For example, there is technology that exists that can tell you if your phone is being tapped. They didn't use it. There was nothing that justified any court taking the case in the first place.

I can't just walk into a court and demand the judge open your bank account records because I think you might have stolen from me. I have to have some type of preliminary evidence that shows that there is a very reasonable probability that you are the primary suspect.

For our system to work, evidenciary rules have to be applied to all cases whether or not we like the result. Doing otherwise opens the door to abuses of the system.

[N3RQ]

The technology exists to determine if a phone is being tapped.

NSA does not tap signals at the Class 5-level. By the time NSA intercepts a call, it has already been multiplexed into a broadband signal.

[N3RQ]

You are correct, but the points may be a bit too esoteric for some of our regulars to follow. Not to put too fine a point on it, many would rather keep their own ideas of what is happening and why, and thus maintain the full flavor of the conspiracies they imagine as everyday happenings.

The problem here is that one will never know if one's calls have been monitored by NSA unless one is brought up on charges.

[N8UZE]

The problem here is that one will never know if one's calls have been monitored by NSA unless one is brought up on charges.

That is precisely how all our law works and is supposed to work. You cannot challenge the law until you have been harmed by it. If a person is prosecuted due to that wire tap, that is when they can challenge the constitutionality of the law, regulation, executive order, etc and not before.

Just like with city ordinances and putting up a ham antenna. You cannot challenge the ordinance until your request for a permit is denied.

Do you propose to turn our entire system upside down? Demanding that these records be produced could also open the gates to abuses of other records. The court might order that your personal or financial records be produced simply because you had a remote acquaintenance with some one who was a criminal rather than because of any evidence against you.

[N3RQ]

That is precisely how all our law works and is supposed to work. You cannot challenge the law until you have been harmed by it. If a person is prosecuted due to that wire tap, that is when they can challenge the constitutionality of the law, regulation, executive order, etc and not before.

Just like with city ordinances and putting up a ham antenna. You cannot challenge the ordinance until your request for a permit is denied.

Do you propose to turn our entire system upside down? Demanding that these records be produced could also open the gates to abuses of other records. The court might order that your personal or financial records be produced simply because you had a remote acquaintenance with some one who was a criminal rather than because of any evidence against you.

You are not going to convince me to trust NSA. I spent several years of my life working for that agency. NSA is a DoD agency (complete with a uniformed component known as the Central Security Service); therefore, it should not be allowed to play policeman. Allowing a DoD agency to override the 4th amendment sets a very dangerous precedent.

[N8UZE]

You are not going to convince me to trust NSA. I spent several years of my life working for that agency. NSA is a DoD agency (complete with a uniformed component known as the Central Security Service); therefore, it should not be allowed to play policeman. Allowing a DoD agency to override the 4th amendment sets a very dangerous precedent.

I never said to trust the NSA. I said that the court is acting the way it should. The court ordering the opening of these records without following existing legal standards could set dangerous precedence in overturning our rights in many other areas.

The moment that someone is dragged into court, denied a loan, has their reputation besmirched due to this law, I would be demanding that the court hear the case and determine its constitutionality. Legal requirements (demonstrable harm) would have then been met.

Subverting our laws and legal systems to go after this wiretapping could be far more harmful than the wiretapping itself.

In other words, two wrongs don't make a right.



Let's look at another area. For example, libel and slander are the bases for actionable suits. Yet the courts will throw these suits out unless preliminary evidence shows that the plaintiff likely suffered demonstrable harm. Only then does it proceed to a full hearing.

[KG4JYD]

Subverting our laws and legal systems to go after this wiretapping could be far more harmful than the wiretapping itself.

In other words, two wrongs don't make a right.

You make a good point and I absolutely understand it. However it creates a VERY dangerous catch-22 because the government has zero transparency on the issue. I agree that the rule of law is paramount, but that also fundamentally includes upholding the Constitution.

[n0ov]

Guess I am not sure what freedoms or protections have been lost here.

If you over heard someone plotting to kill your family, wouldn't you want to use this info to prevent them from doing your family wrong?

Of course, I can see real potential for abuse. I'm less concerned with them doing this vs the oversite in place that ensures the info collected is not being abused........

(fine line)

[AC0H]

You make a good point and I absolutely understand it. However it creates a VERY dangerous catch-22 because the government has zero transparency on the issue. I agree that the rule of law is paramount, but that also fundamentally includes upholding the Constitution.

Isn't that the idea?
Kinda stupid to setup a monitoring system then let the bad guys know all about it in the name of "transparency". Useless as a teat on a boar. Then again, maybe that's what some of the whiners want.

[N8UZE]

You make a good point and I absolutely understand it. However it creates a VERY dangerous catch-22 because the government has zero transparency on the issue. I agree that the rule of law is paramount, but that also fundamentally includes upholding the Constitution.

And that means it is vital that the law NOT be broken to catch lawbreakers. Once such a precedence becomes acceptable and well established, we will truly have lost our rights as they can no longer be protected.

[K3XR]

Of course, the premise of the thread is not correct. This is not domestic spying, the communication is not between citizens of this country, in this country. Clearly the Supremes know something others seemed to have missed. Also the fact is correct, under the law, you can't allege a harm if no harm has been perpetrated against you.

[N3RQ]

Guess I am not sure what freedoms or protections have been lost here.

If you over heard someone plotting to kill your family, wouldn't you want to use this info to prevent them from doing your family wrong?

Of course, I can see real potential for abuse. I'm less concerned with them doing this vs the oversite in place that ensures the info collected is not being abused........

(fine line)

Would you stand for having your house searched without a warrant? NSA is not performing targeted attacks on known terrorists. They are sifting through domestic wideband signals in search of intelligence, which is the electronic equivalent of searching every home in the U.S. without a warrant. This program is one of the most egregious attacks on the 4th amendment in our nation's history.

[N3RQ]

This is not domestic spying

Of course it is! The taps are on domestic trunks.

[KG4JYD]

Kinda stupid to setup a monitoring system then let the bad guys know all about it in the name of "transparency". What about having the good guys (innocent American citizens) knowing about it? :rolleyes:

[KG4JYD]

And that means it is vital that the law NOT be broken to catch lawbreakers.Same thing with domestic spying. Allowing the government to break to the law to gather intelligence on lawbreakers is just as bad.

[N8UZE]

Same thing with domestic spying. Allowing the government to break to the law to gather intelligence on lawbreakers is just as bad.

While that is true, my point is that it is dangerous to then continue that pattern. So it is vital for those fighting illegal evidence collecting to adhere strictly to the laws to not only be successful but to reinforce the very meaning of our laws and constitutional protections.

[KB9YCO]

Would you stand for having your house searched without a warrant? NSA is not performing targeted attacks on known terrorists. They are sifting through domestic wideband signals in search of intelligence, which is the electronic equivalent of searching every home in the U.S. without a warrant. This program is one of the most egregious attacks on the 4th amendment in our nation's history.

Exactly, that's the real point being missed. This had nothing to do with a burden of proof that someone was personally effected, it has to do with the precedent that is set when ONE branch of the government can directly contradict the constitution while having no accountability to anyone but themselves. I don't think most people would have nearly as much problem with these things and others within the so-called and inaptly titled "Patriot" Act if there were some sort of accountability; the problem is no one is watching the watchers, not only an extremely dangerous precedent but blatantly against everything this country is supposed to stand for. Try to twist it whatever way you wish, the fact of the matter remains that this type of activity without accountability or proper legal procedure within the framework of our "guaranteed" rights opens the door to unlimited power with no protections. It's illegal and should never have been allowed in the first place, period.

[N8UZE]

Exactly, that's the real point being missed. This had nothing to do with a burden of proof that someone was personally effected, it has to do with the precedent that is set when ONE branch of the government can directly contradict the constitution while having no accountability to anyone but themselves. I don't think most people would have nearly as much problem with these things and others within the so-called and inaptly titled "Patriot" Act if there were some sort of accountability; the problem is no one is watching the watchers, not only an extremely dangerous precedent but blatantly against everything this country is supposed to stand for. Try to twist it whatever way you wish, the fact of the matter remains that this type of activity without accountability or proper legal procedure within the framework of our "guaranteed" rights opens the door to unlimited power with no protections. It's illegal and should never have been allowed in the first place, period.

The Supreme Court is not allowed to render a judgement on the constitutionality of the law until that law is challenged by a properly constructed suit or case. So far that has not happened with the Patriot Act so they can't touch it, yet. There is no provision in the Constitution for Supreme Court review of proposed laws prior to enactment.

Perhaps what is needed is a new Constitutional amendment to the effect that a law cannot be sent to the President for signature until it has been reviewed by the Supreme Court and ruled as being constitutional. I don't know how much effort and time is required to do this and don't know what kind of a burden this might put on the Supreme Court

[W3MIV]

Perhaps what is needed is a new Constitutional amendment to the effect that a law cannot be sent to the President for signature until it has been reviewed by the Supreme Court and ruled as being constitutional. I don't know how much effort and time is required to do this and don't know what kind of a burden this might put on the Supreme Court

Unrealistic, both in terms of its potential for passage by either the Congress or the states, and also in terms of simple administrative requirements and backlog. It would result in stalemate on the one hand and an inadmissable logjam on the other since the normal case load now seems close to overburdening the Court.

A better solution would be new Congressmen and -women. ;)

[N9XR]

Unrealistic, both in terms of its potential for passage by either the Congress or the states, and also in terms of simple administrative requirements and backlog. It would result in stalemate on the one hand and an inadmissable logjam on the other since the normal case load now seems close to overburdening the Court.

A better solution would be new Congressmen and -women. ;)

So true. I used to see statistics on bills passed authored by individuals that were later overturned by the courts. Seems Hatch had the record at one time, but actually there are many who vote right along with these unenforceable laws.

In Clinton's book (WJC) he discussed how he talked to lawmakers asking them to consider how the laws will even be enforced once they were passed. This was when he was AG in Arkansas. But many don't even stop to think about how they want their law to be enforced. They just have their pet bill that they want to see put into the fray. They don't consider the constitutionality.

Many bills are put before the Congress. These guys don't even read them all. They just vote. It is really sad.

[W3MIV]

A substantial amount of legislation (including amendments to unrelated bills, which is where a lot of pork is stuffed) is put forward and passed by request to satisfy special interests. For all of the folks here stomping and storming about McCain and lobbyists, this is the normal way of legislatures, not merely the Congress.

Pennsylvania's Jack Murtha (yeah, THAT Murtha) has just been name Mr Pork for the obscene amount of money he managed to stuff into a wide array of bills to satisfy special interests at home.

"Bidness" as usual, Jerry. And McCain is actually one of the "cleaner" senators given his place on Commerce -- which is probably second only to Defense in being a target of lobbyists.

It's the system that sucks. But nobody is willing to fire a Murtha because everyone in his district is sucking on the national teat. They are not about to give that up.

So true. I used to see statistics on bills passed authored by individuals that were later overturned by the courts. Seems Hatch had the record at one time, but actually there are many who vote right along with these unenforceable laws.

In Clinton's book (WJC) he discussed how he talked to lawmakers asking them to consider how the laws will even be enforced once they were passed. This was when he was AG in Arkansas. But many don't even stop to think about how they want their law to be enforced. They just have their pet bill that they want to see put into the fray. They don't consider the constitutionality.

Many bills are put before the Congress. These guys don't even read them all. They just vote. It is really sad.

[N8UZE]

Originally Posted by N8UZE
Perhaps what is needed is a new Constitutional amendment to the effect that a law cannot be sent to the President for signature until it has been reviewed by the Supreme Court and ruled as being constitutional. I don't know how much effort and time is required to do this and don't know what kind of a burden this might put on the Supreme Court

Unrealistic, both in terms of its potential for passage by either the Congress or the states, and also in terms of simple administrative requirements and backlog. It would result in stalemate on the one hand and an inadmissable logjam on the other since the normal case load now seems close to overburdening the Court.

A better solution would be new Congressmen and -women. ;)

You speak of the burden on the Supreme Court. They would only see bills that had been passed and would be going to the President for signature. It would be no more of a burden on the Court than it would be on the President. We currently put that very same burden on our President. He has other business to handle yet he seems to manage. Perhaps there could be a subparagraph spelling out exemptions such as federal construction projects and other mundane items of this nature.

Your "better solution" would not work either. The new Congress critters would no more care about the constitutionality of a bill than the ones we have now. They too will be far more interested in getting re-elected. Therefore their focus will be on making their constituents feel good even if the proposals are unconstitutional.

Right now we have only 2 ways to get rid of an unconstitutional law.
1. Congress votes to rescind and/or not renew the law. In this case they had their chance and didn't.
2. A properly constructed case is pushed all the way to the Supreme Court and the Supreme Court rules on it. This hasn't yet happened. The cases so far weren't properly constructed.

At this point in time we have only 1 way to prevent passage of an unconstitutional law.
1. Congress doesn't pass it. While voters can express their wishes and legists can express their interpretations, nothing can stop the Congress from passing an unconstitutional law.

It might be possible to pass a law requiring that bills be reviewed for constitutionality before a bill can be passed but this would be shaky at best as it could always be rescinded. In reality I don't think a bill like this would get passed either.

[W3MIV]

I am still of the view that your proposed solution is far more burdensome than beneficial. The fact is, there are very few laws passed that are truly unconstitutional. Most of the issues, it seems, arise from application of the law more than its intent. There is no way to predict that beforehand.

You speak of the burden on the Supreme Court. They would only see bills that had been passed and would be going to the President for signature. It would be no more of a burden on the Court than it would be on the President. We currently put that very same burden on our President. He has other business to handle yet he seems to manage. Perhaps there could be a subparagraph spelling out exemptions such as federal construction projects and other mundane items of this nature.

Your "better solution" would not work either. The new Congress critters would no more care about the constitutionality of a bill than the ones we have now. They too will be far more interested in getting re-elected. Therefore their focus will be on making their constituents feel good even if the proposals are unconstitutional.

Right now we have only 2 ways to get rid of an unconstitutional law.
1. Congress votes to rescind and/or not renew the law. In this case they had their chance and didn't.
2. A properly constructed case is pushed all the way to the Supreme Court and the Supreme Court rules on it. This hasn't yet happened. The cases so far weren't properly constructed.

At this point in time we have only 1 way to prevent passage of an unconstitutional law.
1. Congress doesn't pass it. While voters can express their wishes and legists can express their interpretations, nothing can stop the Congress from passing an unconstitutional law.

It might be possible to pass a law requiring that bills be reviewed for constitutionality before a bill can be passed but this would be shaky at best as it could always be rescinded. In reality I don't think a bill like this would get passed either.

[N8UZE]

I am still of the view that your proposed solution is far more burdensome than beneficial. The fact is, there are very few laws passed that are truly unconstitutional. Most of the issues, it seems, arise from application of the law more than its intent. There is no way to predict that beforehand.

Thus we are left with the current system (which may in practice be the most reasonable approach) and we are left with those screaming that unconstitutional laws be thrown out without following [the current] proper procedures to do so.

What can't be cured must be endured. - proverb

[W3MIV]

Thus we are left with the current system (which may in practice be the most reasonable approach) and we are left with those screaming that unconstitutional laws be thrown out without following [the current] proper procedures to do so.

What can't be cured must be endured. - proverb

You're right. But the range of interpretations does not match often the reality of Constitutional law, as we have seen here and will continue to see. Though we flop around and ricochet from one rail to the other so often it would make anyone dizzy, we have been moving steadily forward for some 220 years, enduring and curing as we go.

Despite some opinions to the contrary, I am of the view that a bunch of dead White guys did a damned good job, all things considered. I'll stand pat rather than try too much new. ;)

73

[N8UZE]

You're right. But the range of interpretations does not match often the reality of Constitutional law, as we have seen here and will continue to see. Though we flop around and ricochet from one rail to the other so often it would make anyone dizzy, we have been moving steadily forward for some 220 years, enduring and curing as we go.

Despite some opinions to the contrary, I am of the view that a bunch of dead White guys did a damned good job, all things considered. I'll stand pat rather than try too much new. ;)

73

I agree that the Consitution was an extremely good job. Basically they found a good balance between too much and not enough control with sufficient flexibility to change as the world and country changed.

Have you ever read Isaac Asimov's novel The Stars, Like Dust? The protagonist is searching for a lost document, the most dangerous document in the galaxy, a threat to the current government. That document is the long lost Constitution of the United States of America. Although not as good as Asimov's other works, it's still an OK novel.

[KG4JYD]

A better solution would be new Congressmen and -women.How about we elect people with integrity, or those will actually do THEIR JOB.

Question - who do the Congressmen take an oath to?

[N8UZE]

How about we elect people with integrity, or those will actually do THEIR JOB.

Question - who do the Congressmen take an oath to?

What magic touch stone is going to reveal who has integrity and will do their job?

[KG4JYD]

What magic touch stone is going to reveal who has integrity and will do their job?Voting record

[AE6IP]

Voting record

and thus, only incumbents could win election...

Thanks, Matt. I really needed the laugh.

[KG4JYD]

and thus, only incumbents could win election...Good point. Here in TN there is something like a 98% incumbent re-election rate.

And I wouldn't mind that if the incumbents were upholding their oath but they are not. With an incumbent you can usually tell which way they will go based upon their record.

I am not opposed to giving a rookie a chance if they say the right things, have the proper background, etc.

[N8UZE]

Voting record

Haven't seen one yet with a voting record that wasn't full of self serving votes.

[KG4JYD]

Haven't seen one yet with a voting record that wasn't full of self serving votes.Check out Ron Paul