Letters to the Editor
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Remedy is in Congress
The Dems need to make it clear that illegal spying is, well, illegal and apply every remedy they possibly can, up to and including impeachment.
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Ruling on the merits?
There are ways for Congress to act here in order to enable or even compel a court to rule on the legality of the NSA warrantless eavesdropping program.
What type of legislation would accomplish this?
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The Burden of Proof
While this is a civil case that should be a criminal case, I believe that if the government is operating in secret (the ability of the government to operate in secret is something that needs to be limited), the burden of proof in this case should be that the government didn't uniquely harm the plaintiffs under the contractual concept "impossibility of performance". Since defendant in this case has all the information and plaintiff has none, only by divulging a list of all whom have been harmed by this government action can it be determined if the specific litigants have or have not been harmed. Absenting a positive defense from the government that the litigants have not been harmed, it should be presumed that they have been. And thus have standing.
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What recourse?
Can the plaintiffs be the entire US citizenry?
Do we need to fins someone who was arrested and charged based on th e wiretapping? How would we find them?
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We need the next Daniel Ellsberg
It seems to me that the standing issue could be dealt with if someone from inside the program gets fed up and produces a list of people who were spied on illegally. That would produce legitimate plaintiffs for moving forward with a case essentially identical with this one.
This patriot would need to be very careful in making the disclosure, because they would be at risk of disappearing into a secret prison, as would those on the list. A very public disclosure venue, with both the whistle-blower and the plaintiffs present, probably would allow this to get moving safely.
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Border Search Exceptions
Did anyone mention that not only your person, body cavities, and luggage can be searched at border with no warrant, the same goes for your laptop. Phone calls crossing borders certainly falls into that category.
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Wrong again...
Phone calls crossing borders certainly falls into that category.
They don't, but you knew that, right? Nice try though.
It must be tough faking it these days when it so obvious your team is completely wrong and afraid of actually facing a decision in court. Chickens.
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Leaks
Has anyone here called for the prosecution of the leakers of classified information a la Plame? No? What stunning hypocrisy.
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It's obvious
Why would anyone -- including those who think the NSA program is legal -- want to empower our government officials to act free of judicial review of whether they acted illegally? If those who claim to believe that the President acted legally are telling the truth, wouldn't they desire a judicial ruling on these questions?
Why, the judges could be working for Al Qaeda. That's why.
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Question.........
So let's just say, for arguments sake, that The Crime Family leaves office in 2009. And let's also say that after that, be it ten months or ten years, we, the people, find out who has been spied on etc. At that point can someone (with standing) go back into the court system to get a more favorable ruling? And if so, what, at that point, might the consequences be for Bushco.
I guess what I'm aiming for here is accountability. Without any, this is just going to happen again and again.
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Wrong thread dude....
Has anyone here called for the prosecution of the leakers of classified information a la Plame? No? What stunning hypocrisy.
Stick to topic or go away.
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recommendations?
"There are ways for Congress to act here in order to enable or even compel a court to rule on the legality of the NSA warrantless eavesdropping program."
glenn - what do you recommend?
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The standing issue
The obvious fault in the majority's logic is that an illegal program that spies in secret cannot be challenged even though it's very existence assures that some US citizen is being harmed by the program. The fact the person or persons cannot be identified is irrelevant. The issue should not be who has actually been subject to the illegal spying, but who is at risk of being subject to the spying.
Let me give you an example. Let us say the Bush administration began a policy, in violation of law, of rounding up a certain ethnic group based solely on the administration's paranoid hatred of that group. Those rounded up would be disappeared, unable to contact anyone and no one can know what happened to them or prove they were taken by the government. Lets say in Court the government concedes it is doing this but won't say who they have rounded up or who is going to disappear next. Would the Court be correct in denying standing to remaining members of that ethnic group merely because they have not yet been seized by the government?
This is close to what the government believes it can do now. Under repeated statements and actions by the Bush/Cheney branches of government, US citizens may be spied upon, then seized and declared enemy combatants, disappeared to hidden sites, and tried in special tribunals where the evidence against them, even the fact such evidence was procured by warrantless spying is kept from the defendant under the guise of national security. That is our current state of law under the administration.
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Standing
I respectively disagree with GG's extended defense of the reasonableness (appears agnostic as to its correctness) of the standing ruling. I'd add that over at SCOTUSBlog, the summary of the ruling suggested one judge dismissively summarized the claims as fairly minor.
As Balkanization notes, the standing rules currently is a bit of a mess. This works both ways -- it suggests that the majority could have tried the case. The dissent ... even if it thought the question somewhat difficult ... thought so. Given the nature of the matter, including pragmatics involving the who is involved and the problems with this sort of claim (especially with current state secrecy doctrine -- see dissent -- stretched further than it need be), a judicial decision is proper here. Concerns about the "limits" of the courts is sound philosophy as a basic matter, but it doesn't work here.
I'm not a lawyer, though study constitutional issues more than the average person, but it seems a bit too patronizing to preach to "non-lawyer" sorts about the "reasonableness" of the courts not doing their jobs. LAWYERS pressed this claim (the dissent noted the attorney plaintiffs had the strongest case too), two judges upheld it (incl. on standing), so they too felt it proper and unjust to hold the other way. If anything, since they know how the courts are twisted sometimes selectively while others are told "keep out," they know MORE about the injustice of this result.
I respect the fact the majority here -- though as the dissent notes, they left something to be desired -- was not lawless or anything in the holding. But, we don't get extended lectures every time wrong opinions that have some degree of logic to them are handed down. We don't need it here. Standing rules were abused here ... unfair, unnecessary, and the wrong result. No need to defend them.