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US Gov't Can't Be Sued For Warrantless Wiretapping 221

Posted by Soulskill
from the consequence-free dept.
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."
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US Gov't Can't Be Sued For Warrantless Wiretapping

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    • by Jeremiah Cornelius (137) on Tuesday August 07, 2012 @06:26PM (#40910831) Homepage Journal

      There is no law, except as a rhetoric for justifying power.

      You are not a citizen - but merely a subject.

      It is 1164 AD - with Nike shoes and a Prius on the curb.

      • Does anyone seriously think hyperbole like this helps anyone? What are you hoping happens, that people take your nonsense seriously and decide that theres nothing they can do to fix things?

        No, but of course you're right, we collectively have it about as bad as anyone has had it in 900 years. Never mind the fact that we along with a few others enjoy privileges that others both current and historical would give their lives for; lets count those as rubbish and bemoan our fate. THAT will accomplish a lot.

        • by formfeed (703859) on Wednesday August 08, 2012 @12:18AM (#40914517)

          Does anyone seriously think hyperbole like this helps anyone?

          But of course!
          Hyperbole is the bread of the downtrodden masses. It is the axe that will fall on the neck of the oppressor. It is the light that brightens the future, the candle by which we read the manifestos on our ipads.

        • Re: (Score:2, Insightful)

          by Anonymous Coward

          Never mind the fact that we along with a few others enjoy privileges that others both current and historical would give their lives for; lets count those as rubbish and bemoan our fate.

          Exactly. We can only start complaining the very moment they show up and load us into cattle cars bound for the gas chambers. Until they drop the cyanide canister in, everyone needs to STFU and consider themselves lucky it's not worse off.

          By the way, you're retarded.

      • Modern version should read:

        There is no law, except as a rhetoric for justifying manipulation.

        You are not a citizen - but merely an object.

  • by Anonymous Coward

    is that the conclusion i'm reading here?

    • by mwvdlee (775178) on Tuesday August 07, 2012 @06:15PM (#40910739) Homepage

      I'm sure they have to justify their action to their corporate owners come next election.

    • by BMOC (2478408) on Tuesday August 07, 2012 @06:44PM (#40911013)

      FTA:

      “Under this scheme, Al-Haramain can bring a suit for damages against the United States for use of the collected information, but cannot bring suit against the government for collection of the information itself,” Judge M. Margaret McKeown wrote for the majority. She was joined by Judge Michael Daly Hawkins and Judge Harry Pregerson. ”Although such a structure may seem anomalous and even unfair, the policy judgment is one for Congress, not the courts.”

      Huh? The judiciary is abdicating its own power here. It is the actions of the executive in violation of clearly spelled out laws that is the problem here. Are they suggesting that government workers cannot be sued for clear negligence w.r.t. the law because Congress did not authorize it? Did the lawyers in this case sue the legislative branch, or the executive? They should have sued the executive, and they should have won.

      • by tnk1 (899206) on Tuesday August 07, 2012 @07:04PM (#40911217)

        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.

        • by Dragonslicer (991472) on Tuesday August 07, 2012 @08:51PM (#40912585)

          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?

          • Just in case you missed it:

            It is Congress' job to fix bad laws that are not unconstitutional

            Where Im from, we count the 4th amendment as part of the constitution. If a law violates it, we already have a clear remedy in the court system.

        • by smooth wombat (796938) on Wednesday August 08, 2012 @08:55AM (#40916977) Homepage Journal
          If the court perceives that to render a judgement would effectively be legislating, they are not permitted to do that,

          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.
        • by moeinvt (851793)

          The original FISA Act made it a CRIME with both civil and criminal penalties for an employee of the Federal government to spy on U.S. citizens without obtaining a warrant.

          The FISA law had provisions for what were deemed immediate threats (for example, surveillance could start immediately provided that a warrant was obtained shortly thereafter). The FISA court was also secret and had a policy of basically rubber-stamping warrant applications, but there was at least some modicum of judicial oversight.

          Bush ma

      • by jpapon (1877296)
        That's the point, the government cannot be sued directly by a citizen, since the government has sovereign immunity.

        The court is merely saying that unless the government explicitly decides to waive sovereign immunity, they cannot be sued. The courts do not decide when sovereign immunity has been waived, that is left up to the legislative or executive. This has always been the case in the USA.

        • by Kjella (173770)

          That's the point, the government cannot be sued directly by a citizen, since the government has sovereign immunity. The court is merely saying that unless the government explicitly decides to waive sovereign immunity, they cannot be sued. The courts do not decide when sovereign immunity has been waived, that is left up to the legislative or executive. This has always been the case in the USA.

          That part is fair enough, but shouldn't the constitution be considered explicitly waiving immunity? Because otherwise the government can tap dance over the 4th amendment's grave and nobody can sue them. In fact, the whole Bill of Rights would be useless.

          • Because otherwise the government can tap dance over the 4th amendment's grave and nobody can sue them.

            From what Im gathering, you CANT sue the "government", but you CAN try to get the courts to strike a law down. IIRC, the recent healthcare thing in the supreme court wasnt a case of the Gov't being sued, but of the law being tested for constitutionality. Unless I am mistaken-- and I might be-- there would have been no penalty for the government if the law had been stricken down other than the political ramifications.

            • by anagama (611277)

              I see the difference but really, it makes the constitution pretty hollow when all the courts can do is strike down a law but can in no way hold the Feds responsible for violating the constitution. The courts can strike down all the laws they want, but what is a citizen to do when the Feds violate the constitution? Nothing. Sovereign immunity trumps everything I guess.

              The drug war got the ball rolling on the erosion of civil liberties, GWB ran with that after 9/11, and Obama has totally shredded the const

              • by jpapon (1877296)
                You can challenge a law in court, but you cannot bring suit against the President for enforcing a law. This is the only way that any of this works.

                If private citizens could bring suit against the President and won, who would enforce the decision if he refused to comply? The army that he is Commander in Chief of?

                If the courts could convict the President, wouldn't that give them the power to remove the President from power (since you can't be President from a prison cell)? Isn't the power to impeach very

      • by pdabbadabba (720526) on Tuesday August 07, 2012 @09:55PM (#40913313) Homepage

        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).

  • Really, {add tfh}this kind of thing has been going on for decades and will continue for the foreseeable future without repercussions. It's the government, can we not all expect there to be some amount of collusion between the branches to keep this type of activity going in the name of "national security"?{remove tfh}

    • by cavreader (1903280) on Tuesday August 07, 2012 @07:30PM (#40911497)

      Congress passed a unambiguous law before the US entered WW2 prohibiting wire tapping to catch potential German agents in the US and 15 minutes later Eisenhower wrote an executive directive to ignore the law. If the US had been defeated in WW2 he would have been prosecuted and most likely convicted but that didn't happen and Congress decided to pretend they never passed such a law. The US constitution and associated laws are not a suicide pact. Even more astonishing is that presidents Carter, Bush1, Clinton, and Bush 2 were asked what they would have done under the same situation and all of them said they would have did the same thing. Even Obama is willing to make decisions that are technically prohibited by law but laws do not cover all situations in certain circumstances. Especially when national security is involved.

      • Re: (Score:2, Informative)

        by Anonymous Coward

        "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.

  • by Hatta (162192) on Tuesday August 07, 2012 @06:13PM (#40910717) Journal

    Title says it all. The government should not be above the law. Abolish every other sort of immunity (judicial, qualified, etc) while you're at it.

    • by BMOC (2478408)

      "Sovereign Immunity"

      The very name brings to mind the reason rule of law was brought into being in the first place, so that there was one set of rules for everyone. The elite of the world seem historically hell-bent on creating one set of rules for a ruling class, and one for everyone else.

      • by Anonymous Coward

        The government is not a person. It makes the laws. No court can touch it. This is the way the law works in the Anglo-American system, and generally in every developed system.

        That said, American courts long ago worked out a clever solution. If you can't sue the government, you can sue the government officer in personam; that is, sue the officer as a regular citizen. If it's illegal for the government to do, then it's illegal for the officer, too, even if he's just following orders.

        That was a novel turn, but

    • Title says it all. The government should not be above the law.

      It's not. [wikipedia.org]

      Or rather, wouldn't be, if the People refused to allow it.

      “Well, Doctor, what have we got—a Republic or a Monarchy?”

      “A Republic, if you can keep it.

      • by Hatta (162192) on Tuesday August 07, 2012 @06:29PM (#40910865) Journal

        This ruling is proof that the government is in fact above the law. The constitution means dick if you can't get the courts to enforce it.

        • by Mitreya (579078)

          This ruling is proof that the government is in fact above the law.

          That is indeed a very new development. Quite a step above the usual "Dismiss this lawsuit, because otherwise we'll have to reveal state secrets and the terrorists will kill everyone". Perhaps because this particular lawsuit is the only challenge that survived the old argument?
          Any chance SCOTUS may reverse this?

          • by jpapon (1877296) on Tuesday August 07, 2012 @08:20PM (#40912147) Journal
            It's not a new development by any stretch of the imagination. The first court case establishing sovereign immunity in the US was Chisholm v. Georgia, in 1793. That's right, three years after the Constitution was ratified.

            Think about it some, who enforces the decisions of Federal courts? The Federal government. So if you brought suit against the Federal government and won, who would enforce the decision? The Feds?? You're asking the government to arrest themselves... which can't be done. You would have to make a new federal government to arrest the old one.

            That would mean the courts have the power to overthrow the Federal government, which they don't.

            • by petsounds (593538)

              You're asking the government to arrest themselves... which can't be done. You would have to make a new federal government to arrest the old one. That would mean the courts have the power to overthrow the Federal government, which they don't.

              Well, the courts can certainly convict persons who make up the government, including the President. However, every attempt by the people to have justice served in this manner has also been thrown out. The only Separation of Power left is the separation between the govern

              • by jpapon (1877296)

                Well, the courts can certainly convict persons who make up the government, including the President.

                Actually, no, a private citizen cannot bring suit against the President. This would be silly... the President is Commander in Chief of the armed forces. Who is going to enforce a decision against him if he refuses to comply?

                There's a reason the power to impeach is specifically given to the Legislative branch in the Constitution. If the President wasn't given sovereign immunity, the Judicial branch would ALSO have the power to impeach (since a President can't very well "preside" from a prison cell).

        • by jpapon (1877296)
          How is this insightful? It's goddamn retarded.

          The US government has always had sovereign immunity.

          Immunity of the United States From Suit.—Pursuant to the general rule that a sovereign cannot be sued in its own courts, it follows that the judicial power does not extend to suits against the United States unless Congress by general or special enactment consents to suits against the Government. This rule first emanated in embryo form in an obiter dictum by Chief Justice Jay in Chisholm v. Georgia, where he indicated that a suit would not lie against the United States because “there is no power which the courts can call to their aid.”858 In Cohens v. Virginia,859 also by way of dictum, Chief Justice Marshal asserted, “the universally received opinion is that no suit can be commenced or prosecuted against the United States.” The issue was more directly in question in United States v. Clarke,860 where Chief Justice Marshall stated that as the United States is “not suable of common right, the party who institutes such suit must bring his case within the authority of some act of Congress, or the court cannot exercise jurisdiction over it.” He thereupon ruled that the act of May 26, 1830, for the final settlement of land claims in Florida condoned the suit. The doctrine of the exemption of the United States from suit was repeated in various subsequent cases, without discussion or examina[p.747]tion.861 Indeed, it was not until United States v. Lee862 that the Court examined the rule and the reasons for it, and limited its application accordingly.

          Source: http://www.law.cornell.edu/wex/sovereign_immunity/ [cornell.edu]

          • Its insightful because slashdot is filled with armchair lawyer reactionaries who take retarded headlines at face value and act suprised when they discover they were misled.

            Slashdot headlines have always been about getting the most intense reaction, and the slashdot readerbase seldom fails to perform in that capacity. Even a moments research would have shown how much of a non-issue this was, but that is too much to ask of slashdot.

        • by Shavano (2541114)
          If the executive won't obey the law the mechanism of control is impeachment and defeat in elections.
  • by ohnocitizen (1951674) on Tuesday August 07, 2012 @06:14PM (#40910721)
    If a crime lacks consequences, is it still illegal? There's no longer remedy available through criminal prosecution or civil suit.
    • by Mitreya (579078) <mitreyaNO@SPAMgmail.com> on Tuesday August 07, 2012 @06:23PM (#40910797)

      Is Wiretapping Legal Now?

      Why, that depends. It would still be illegal for you to do it. Laws that can be enforced selectively are the most convenient!

      • Its amazing that you can continue to garner +5 insightfuls with several lawyers in this thread remarking on how clueless you are.
        http://en.wikipedia.org/wiki/Sovereign_immunity#United_States [wikipedia.org]
        Youll note in there that Sovereign Immunity has been around since the founding of our country, and that in the UK it has been a historical reality as well.

        But continue to spout off about things you apparently have no understanding of, it seems to be doing wonders for your karma.

    • It lacks civil suit consequence, not criminal prosecution consequence.
      • Re: (Score:3, Interesting)

        by Anonymous Coward
        It also lacks criminal prosecution consequences. The reason this is so is because for criminal prosecution, you need a suspect. In order to have a suspect, you need some information. You can't investigate that which is highly classified for suspects who have broken the law. Classification of government activities effectively shields anyone acting within any classified information space from outside prosecution unless whistleblowers exist.
      • by sconeu (64226)

        And who is going to prosecute the DOJ? The DOJ?

    • by Meeni (1815694)

      Illegally obtained proofs are are not acceptable as proofs during a trial. In some cases, mistrial can result from improper procedures during the inquiries. So it still has consequences somehow that the wiretapping was illegal in the first place, even though those using these illegal procedures are not held accountable.

  • Bye-bye civil society keeping in check the govt... nice while it lasted, but it was naive to think it will last forever.
    • at one point have we, the people, been able to keep the government in check? I always thought it was the other way around.

  • She was a White House staffer under Jimmy Carter and was appointed to the court by Bill Clinton.

  • Wow, is this scary (Score:5, Insightful)

    by jeko (179919) on Tuesday August 07, 2012 @06:28PM (#40910857)

    For decades we have held that phone calls are private communications that require a warrant to intercept per the 4th Amendment. The Federal Government isn't arguing that they haven't violated the 4th. They're arguing that they're immune from any legal attempts to hold them accountable for violating the 4th.

    That's terrifying. It's so bad it makes me think I've wandered into tin foil hat territory, until I read the article: [wired.com]

    The San Francisco-based appeals court ruled that when Congress wrote the law regulating eavesdropping on Americans and spies, it never waived sovereign immunity in the section prohibiting targeting Americans without warrants. That means Congress did not allow for aggrieved Americans to sue the government, even if their constitutional rights were violated by the United States breaching its own wiretapping laws.

    That's Terry Gilliam "Brazil" logic, right there. The government is literally arguing they're violating the 4th Amendment, but that no one has the authority to hold them accountable. Literally, that the King is above the law. This ruling is so bad that not only does it violate the Bill of Rights, it violates the Magna Carta.

    • Literally, that the King is above the law.

      So is he standing on it, or flying over it? Or perhaps he's using it as toilet paper?

      • Not even the King is above the Law. [wikipedia.org]

        It's one of Western Civilization's famous slogans, right up there with "Give me Liberty or Give me Death," "Remember the Alamo," "Coke Is It!" and "Use the Force, Luke." :-)

        • I was poking fun at your misuse of the word "literally". Maybe you shouldn't have cut English class so much?
          • They Literally are. I actually attended so many English classes that I remember the entire flow of the argument short-handed as "The King is Above the Law." :-)

            They're arguing that no one has the authority to call the Executive to account. They're about half a step short of "Divine Right of Kings," and they certainly have reached "Might Makes Right." Remember "If the president does it, it can't be illegal?" They've simply carried that thought to its logical conclusion, that the president and those who work

    • by UPZ (947916)
      How can congress make a law that allows the govt to violate constitutional rights? Is the constitution the supreme law of the land that we take an oath to uphold? Sodoesn't it supersede congressional blabber?
  • And another chance to reverse a terrible decision on the part of the Legislature denied.

  • by Culture20 (968837) on Tuesday August 07, 2012 @06:34PM (#40910915)
    How explicit does the government have to be? R? NC17? XXX?
  • Ahoy Despotism? (Score:5, Interesting)

    by udoschuermann (158146) on Tuesday August 07, 2012 @06:55PM (#40911125) Homepage

    Seems to me that when the government can violate the law with impunity, it is aiming for despotism. The law of the land is respected only so long as everybody (the government included) is held accountable by it equally.

  • and the enemy is (Score:4, Interesting)

    by ranpel (1255408) on Tuesday August 07, 2012 @06:55PM (#40911133)
    I hesitate to type this but after reading TFA I could only conclude that Congress is, in fact, the enemy. Those responsible for passing the applicable laws should, in my mind, be tried for treason. That or show us all (that is - all of us) the truth about all these plots and evil little plans that threatened to take off half the eastern seaboard. SHOW ME! Cunts.

    That we're allowed to (nay, made to) fear and to react to that which we can not see is no longer acceptable. Not. Acceptable.
    I. Do. Not. Accept.
    • Yeah, well who elects Congress?

      A1: Their corporate sponsors, Ergo, global financial interests are the enemy.

      A2: The People. Ergo, we are our own enemy.

    • by Mitreya (579078)

      conclude that Congress is, in fact, the enemy.

      I am not entirely sure why you would conclude that. I'd blame the court here
      IANAL, but I think I would have heard that every law has to have an extra note that says "oh, and government is not immune to this law". And if Congress forgot to add that note - too bad, better luck next time.
      Maybe the SCOTUS will take this one for review?

  • by Libertarian_Geek (691416) on Tuesday August 07, 2012 @07:06PM (#40911257)

    What about deprivation of rights under color of law? They've already confirmed that 4th amendment protected rights were violated. Now, we're just talking about how to hold those responsible accountable for their actions.

    18 USC 242 - Deprivation of rights under color of law:

    http://www.law.cornell.edu/uscode/text/18/242

  • So, what now? (Score:5, Insightful)

    by clonehappy (655530) on Tuesday August 07, 2012 @07:31PM (#40911505)
    If I have this correctly, here's what the government has just told us:

    1. We violated the 4th Amendment to the Constitution.
    2. If you would like redress to your grievances, see line 3, below.
    3. Fuck You.

    Am I still a tinfoil-hatter, now?
    • Am I still a tinfoil-hatter, now?

      Yes, because you seem to believe that the individuals who make up the government aren't perfect beings who could never do any wrong.

      • by oodaloop (1229816)
        People are fallible, and do wrong. And when they violate the law they should be held responsible for it.
  • Can someone please explain the concept of sovereign immunity? The government is sued all the time, so how does this concept fit in here? And how can the constitution be enforced in light of this?

  • by evil_aaronm (671521) on Tuesday August 07, 2012 @11:10PM (#40914039)
    The ideal that US government is of the people, by the people and for the people is not only dead, but stick a fork in its fucking carcass dead. Behold a brave new future for Americans, where we cast off the burden of being equal in the eyes of the law, and, instead, become serfs of the state, destined to do only as we're told, when we're told - and love it... Comrade! Smile when you lick those boots!
  • Even in Soviet UKistan, where we still have an actual sovereign, we can sue "the crown".

    For all that you Yanks were so keen to get rid of a king, you certainly seem to like the trappings.

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