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Thread: Judge doesn't buy state secrets privilege, OKs wiretap suit

  1. #1
    Norville Rogers
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    Judge doesn't buy state secrets privilege, OKs wiretap suit

    Source [Ars Technica | Judge doesn't buy state secrets privilege, OKs wiretap suit]

    A federal judge ruled Monday that a lawsuit filed by an Islamic charity alleging that it was illegally wiretapped by the National Security Agency may proceed, and issued a stinging rebuke to government lawyers who have repeatedly sought to invoke the state secrets privilege to block litigation.

    The case, Al Haramain v. Bush, is unusual in that—unlike the Electronic Frontier Foundation's more publicized suits against the NSA and complicit telecoms—the plaintiffs in this case know that the directors of the Al-Haramain Islamic Foundation were specifically subject to warrantless surveillance, thanks to a government blunder that put a classified memo in the hands of the charity's lawyers. An appellate court ruled last year that the secret document had to be turned over to the government, and so could not be used to establish standing to sue. But in an opinion issued this summer, Judge Vaughn Walker, who has been handling a spate of suits concerning the NSA's super-secret "Stellar Wind" program, decided that the foundation could still seek to show they'd been spied upon using public evidence.

    On Monday, Walker concluded that they had met that burden. "Without a doubt," he wrote, plaintiffs have alleged enough to plead 'aggrieved persons' status so as to proceed to the next step in proceedings." Blocked from using the secret memo, attorneys for Al Haramain assembled a timeline, drawing on FBI memoranda and Congressional testimony, suggesting that the government had been privy to conversations between foundation directors in which they discussed people with links to Osama bin Laden. The foundation's assets were frozen in 2004 when it was classified as a "Specially Designated Global Terrorist" group—a designation the government acknowledged to be partially based on classified documents derived from surveillance.

    The Justice Department has repeatedly sought to block the suit by invoking national security concerns. Urging the court to reject the foundation's circumstantial evidence as insufficient, they argued that the court "cannot exercise jurisdiction based on anything less than the actual facts." But in language echoing previous rulings, Walker rejected that argument, noting that Congress had made specific provision within the Foreign Intelligence Surveillance Act for "aggrieved persons" to seek redress for improper surveillance.

    [...]

    At times, a note of irritation crept into Walker's even, judicial language. At one point, he described the government's argument as "without merit," and characterized another as "circular." He also seemed impatient with the Justice Department's refusal to provide any classified documents addressing Al Haramain's specific claims for review in chambers. "It appears... that defendants believe they can prevent the court from taking any action under 1806(f) by simply declining to act," wrote Walker.
    I don't see the harm in allowing warrantless wiretapping to be challenged in court and I'm glad that the courts aren't allowing the suit to just get buried. If it's constitutional let the courts declare it so, if not it is unconscionable to allow it to continue.

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    Re: Judge doesn't buy state secrets privilege, OKs wiretap suit

    Quote Originally Posted by Kernel Sanders View Post
    If it's constitutional let the courts declare it so, if not it is unconscionable to allow it to continue.
    I don't find that very persuasive. Why let the Courts decide?

    The courts have a limited role in our government, as evidenced by the fact that the Constitution grants to the legislative branch the power to determine the structure of the judiciary and, in essence, the extent of its appellate authority. While judicial review is surely implied in the Constitution (without the power to adjudicate or interpret the judiciary has no effective authority), it was never a primary focus at the constitutional convention and its boundaries have been determined by the judiciary itself. Not surprisingly, the judiciary has concluded that the power is supreme. And, not surprisingly, we now have citizens meekly deferring to that alleged supreme power to be the final interpreter of the Constitution.

    Consequently, we have comments like the one I quoted above. Total deference to an unelected and unaccountable body to determine an important public policy issue.

    Weak.

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    Norville Rogers
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    Re: Judge doesn't buy state secrets privilege, OKs wiretap suit

    Quote Originally Posted by JMak View Post
    I don't find that very persuasive. Why let the Courts decide?

    The courts have a limited role in our government, as evidenced by the fact that the Constitution grants to the legislative branch the power to determine the structure of the judiciary and, in essence, the extent of its appellate authority. While judicial review is surely implied in the Constitution (without the power to adjudicate or interpret the judiciary has no effective authority), it was never a primary focus at the constitutional convention and its boundaries have been determined by the judiciary itself. Not surprisingly, the judiciary has concluded that the power is supreme. And, not surprisingly, we now have citizens meekly deferring to that alleged supreme power to be the final interpreter of the Constitution.

    Consequently, we have comments like the one I quoted above. Total deference to an unelected and unaccountable body to determine an important public policy issue.

    Weak.
    Why let the courts decide constitutionality? Maybe because that's their job.....

    Here's a nice guide in case you get stuck

    Source [Government Printing Office (Ben's Guide to US Government for Kids) | Judicial Branch]


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    Re: Judge doesn't buy state secrets privilege, OKs wiretap suit

    Quote Originally Posted by Kernel Sanders View Post
    Why let the courts decide constitutionality? Maybe because that's their job.....
    That was funny...

    But you ducked what I think is a legitimate point.

    You do agree that the Constitution contains the concepts of separation of power, checks and balances, and co-equal branches, right?

    What you're ascribing to, well, what the Judicial Branch has done, the courts is judicial supremacy which totally wrecks these aforementioned constitutional concepts, no?

    If the Court determines that the surveillance, as conducted in this instance, was unconstitutional, well, what happens when Congress passes legislation authorizing the Executive to conduct that type of surveillance?

    If you say that the courts strike it down then you're advocating for a superior branch of government, a perversion of the founders intentions.

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    Re: Judge doesn't buy state secrets privilege, OKs wiretap suit

    Quote Originally Posted by Kernel Sanders View Post
    Source [Ars Technica | Judge doesn't buy state secrets privilege, OKs wiretap suit]



    I don't see the harm in allowing warrantless wiretapping to be challenged in court and I'm glad that the courts aren't allowing the suit to just get buried. If it's constitutional let the courts declare it so, if not it is unconscionable to allow it to continue.
    The issue in this suit really has nothing to do with "constitutionality." It's about whether the common law "state secret" privilege preempts the FISA's provisions allowing "aggrieved persons" to sue (Court held in July that it didn't), and now, whether the P's in this case qualify as "aggrieved persons" (which it just held that they did).

    And before anyone goes off about liberal Kalifornia judges, SAN FRANCISCO / Walker becomes chief district judge
    People sleep peaceably in their beds at night only because rough men stand ready to do violence on their behalf.

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    Re: Judge doesn't buy state secrets privilege, OKs wiretap suit

    Quote Originally Posted by JMak View Post
    That was funny...

    But you ducked what I think is a legitimate point.

    You do agree that the Constitution contains the concepts of separation of power, checks and balances, and co-equal branches, right?

    What you're ascribing to, well, what the Judicial Branch has done, the courts is judicial supremacy which totally wrecks these aforementioned constitutional concepts, no?

    If the Court determines that the surveillance, as conducted in this instance, was unconstitutional, well, what happens when Congress passes legislation authorizing the Executive to conduct that type of surveillance?

    If you say that the courts strike it down then you're advocating for a superior branch of government, a perversion of the founders intentions.
    Congress can remove the ability of the courts to hear those cases.
    People sleep peaceably in their beds at night only because rough men stand ready to do violence on their behalf.

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    Norville Rogers
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    Re: Judge doesn't buy state secrets privilege, OKs wiretap suit

    Quote Originally Posted by JMak View Post
    That was funny...

    But you ducked what I think is a legitimate point.

    You do agree that the Constitution contains the concepts of separation of power, checks and balances, and co-equal branches, right?
    Indeed, which is why federal judges are appointed by the executive branch and confirmed by the legislative. The judicial branch itself is a check on the legislative branch. What better system than the courts would you suggest to ensure that the legislative branch does not create laws that violate the supreme law of the land?

    Quote Originally Posted by JMak View Post
    What you're ascribing to, well, what the Judicial Branch has done, the courts is judicial supremacy which totally wrecks these aforementioned constitutional concepts, no?
    Not at all. The judicial branch cannot legislate, it can only determine if existing legislation is illegal or interpret the existing language of existing legislation. It must work entirely within the framework that is set by the legislative branch

    Quote Originally Posted by JMak View Post
    If the Court determines that the surveillance, as conducted in this instance, was unconstitutional, well, what happens when Congress passes legislation authorizing the Executive to conduct that type of surveillance?
    Nothing. However, when such legislation is challenged in court the judicial branch can strike said legislation down as unconstitutional. Ya know - check the power of Congress

    Quote Originally Posted by JMak View Post
    If you say that the courts strike it down then you're advocating for a superior branch of government, a perversion of the founders intentions.
    I can't believe that you're so badly misunderstanding something as fundamental as checks and balances. Judicial review is an essential part of that system

    Source [US Constitution Online | Constitutional Topic: Checks and Balances]

    Legislative Branch

    * Checks on the Executive
    o Impeachment power (House)
    o Trial of impeachments (Senate)
    o Selection of the President (House) and Vice President (Senate) in the case of no majority of electoral votes
    o May override Presidential vetoes
    o Senate approves departmental appointments
    o Senate approves treaties and ambassadors
    o Approval of replacement Vice President
    o Power to declare war
    o Power to enact taxes and allocate funds
    o President must, from time-to-time, deliver a State of the Union address
    * Checks on the Judiciary
    o Senate approves federal judges
    o Impeachment power (House)
    o Trial of impeachments (Senate)
    o Power to initiate constitutional amendments
    o Power to set courts inferior to the Supreme Court
    o Power to set jurisdiction of courts
    o Power to alter the size of the Supreme Court
    * Checks on the Legislature - because it is bicameral, the Legislative branch has a degree of self-checking.
    o Bills must be passed by both houses of Congress
    o House must originate revenue bills
    o Neither house may adjourn for more than three days without the consent of the other house
    o All journals are to be published

    Executive Branch

    * Checks on the Legislature
    o Veto power
    o Vice President is President of the Senate
    o Commander in chief of the military
    o Recess appointments
    o Emergency calling into session of one or both houses of Congress
    o May force adjournment when both houses cannot agree on adjournment
    o Compensation cannot be diminished
    * Checks on the Judiciary
    o Power to appoint judges
    o Pardon power
    * Checks on the Executive
    o Vice President and Cabinet can vote that the President is unable to discharge his duties

    Judicial Branch

    * Checks on the Legislature
    o Judicial review
    o Seats are held on good behavior
    o Compensation cannot be diminished

    * Checks on the Executive
    o Judicial review
    o Chief Justice sits as President of the Senate during presidential impeachment

  8. #8
    Norville Rogers
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    Re: Judge doesn't buy state secrets privilege, OKs wiretap suit

    Quote Originally Posted by RightinNYC View Post
    The issue in this suit really has nothing to do with "constitutionality." It's about whether the common law "state secret" privilege preempts the FISA's provisions allowing "aggrieved persons" to sue (Court held in July that it didn't), and now, whether the P's in this case qualify as "aggrieved persons" (which it just held that they did).

    And before anyone goes off about liberal Kalifornia judges, SAN FRANCISCO / Walker becomes chief district judge
    This particular decision rejects the government's attempt to dismiss the suit on the grounds of 'state secrets.' The suit itself challenges warrantless wiretapping.

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    Re: Judge doesn't buy state secrets privilege, OKs wiretap suit

    Quote Originally Posted by Kernel Sanders View Post
    I can't believe that you're so badly misunderstanding something as fundamental as checks and balances. Judicial review is an essential part of that system
    FWIW, there's are non-trivial arguments questioning the essentiallity or even validity of judicial review's place in our system.

    Harvard University Press: Law and Judicial Duty by Philip Hamburger
    People sleep peaceably in their beds at night only because rough men stand ready to do violence on their behalf.

  10. #10
    Norville Rogers
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    Re: Judge doesn't buy state secrets privilege, OKs wiretap suit

    Quote Originally Posted by RightinNYC View Post
    FWIW, there's are non-trivial arguments questioning the essentiallity or even validity of judicial review's place in our system.

    Harvard University Press: Law and Judicial Duty by Philip Hamburger
    That synopsis doesn't actually state any of the book's arguments, which makes it impossible to debate. The most it says is this

    Hamburger lays the foundation for his argument by explaining the common law ideals of law and judicial duty. He shows that the law of the land was understood to rest on the authority of the lawmaker and that what could not be discerned within the law of the land was not considered legally binding. He then shows that judges had a duty to decide in accord with the law of the land. These two ideals—law and judicial duty—together established and limited what judges could do.
    That paragraph seems to indicate more of a problem with the courts interpreting the laws than with the courts declaring laws unconstitutional. I don't see how the constitution has any meaning at all unless the courts can strike down laws that violate it.

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