US Gov't Can't Be Sued For Warrantless Wiretapping 221
Wired has an article about a ruling from the 9th U.S. Circuit Court of Appeals saying the government can't be sued over intercepting phone calls without a warrant. The decision (PDF) vacated an earlier ruling which allowed a case to be brought against the government. The plaintiffs in the case argued that the government had implicitly waived sovereign immunity, but today's ruling points out that it can only be waived explicitly. Judge McKeown wrote, "This case effectively brings to an end the plaintiffs’ ongoing attempts to hold the Executive Branch responsible for intercepting telephone conversations without judicial authorization." The ruling does, however, take time to knock down the government's claim that the case was brought frivolously: "In light of the complex, ever-evolving nature of this litigation, and considering the significant infringement on individual liberties that would occur if the Executive Branch were to disregard congressionally-mandated procedures for obtaining judicial authorization of international wiretaps, the charge of 'game-playing' lobbed by the government is as careless as it is inaccurate. Throughout, the plaintiffs have proposed ways of advancing their lawsuit without jeopardizing national security, ultimately going so far as to disclaim any reliance whatsoever on the Sealed Document. That their suit has ultimately failed does not in any way call into question the integrity with which they pursued it."
Re:so the guvmint has no one to answer to (Score:5, Informative)
Policy is always set by the legislative branch, the judicial can interpret it, and weigh it against the Constitution and see if it is overridden, but that is it.
If the court perceives that to render a judgement would effectively be legislating, they are not permitted to do that, even if they feel the current state of the law is unfair. It is Congress' job to fix bad laws that are not unconstitutional, not the courts'.
If the law made the situation possible which the Executive took advantage of, the court cannot alter the situation without some higher law to override it.
Re:Is anyone surprised? (Score:2, Informative)
"Eisenhower"? You sure? Before WW2, Eisenhower was a newly promoted Brigadier General who'd never held a command position and certainly wasn't signing any such documents.
Re:so the guvmint has no one to answer to (Score:5, Informative)
If the law made the situation possible which the Executive took advantage of, the court cannot alter the situation without some higher law to override it.
Some higher law like the Fourth Amendment?
Re:so the guvmint has no one to answer to (Score:5, Informative)
Lawyer here. There is nothing at all new about the doctrine of sovereign immunity. It goes back hundreds and hundreds of years. As a U.S.-trained lawyer, there is nothing at all surprising about any of this. It may be that we should abandon the doctrine -- I've never heard anyone give a very satisfactory explanation for it -- but it is probably unfair to blame the 9th circuit for not doing so. It would have been a very major break with hundreds (thousands, really) of years of legal tradition and almost certainly would have been reversed summarily by the Supreme Court.
It can get a little bit complicated but basically, you can't sue the government FOR DAMAGES unless the government has consented. For some reason, the government has actually consented to suit in a number of situations in the Federal Tort Claims Act (fun fact: passed after a B-52 crashed into the Empire State Building in the 1940s). This typically extends to suits against government themselves and suits against officials in their so-called official capacity.
But there are two other possibilities: you can still sue the government for non-damages remedies like (typically) an injunction. You can also sue government officials in their individual capacities, but they typically enjoy some degree of immunity themselves (if they didn't, all the law suits would dissuade anyone from working as a federal official).
Re:so the guvmint has no one to answer to (Score:4, Informative)
Tell that to John Roberts because that's exactly what he did when he decided that forcing people to pay for other people's medical bills is a tax even though the word tax was not used in the legislation and the President himself has said the bill is not a tax.
Roberts legislated from the bench when he decided to make a political rather than legal decision, effectively handing the presidency to Romney.