I'd Like My 4th Amendment Back, Please

[magekillr]

The Obama administration is again invoking government secrecy in defending the Bush administration's wiretapping program, this time against a lawsuit by AT&T customers who claim federal agents illegally intercepted their phone calls and gained access to their records.

 

 

 

Disclosure of the information sought by the customers, "which concerns how the United States seeks to detect and prevent terrorist attacks, would cause exceptionally grave harm to national security," Justice Department lawyers said in papers filed Friday in San Francisco.

 

 

 

Kevin Bankston of the Electronic Frontier Foundation, a lawyer for the customers, said Monday the filing was disappointing in light of the Obama presidential campaign's "unceasing criticism of Bush-era secrecy and promise for more transparency."

 

 

 

In a 2006 lawsuit, the AT&T plaintiffs accused the company of allowing the National Security Agency to intercept calls and e-mails and inspect records of millions of customers without warrants or evidence of wrongdoing.

 

 

 

The suit followed President George W. Bush's acknowledgement in 2005 that he had secretly authorized the NSA in 2001 to monitor messages between U.S. residents and suspected foreign terrorists without seeking court approval, as required by a 1978 law.

 

 

 

Congress passed a new law last summer permitting the surveillance after Bush allowed some court supervision, the extent of which has not been made public. The law also sought to grant immunity to AT&T and other telecommunications companies from suits by customers accusing them of helping the government spy on them.

 

 

 

Nearly 40 such suits from around the nation, all filed after Bush's 2005 disclosure, have been transferred to San Francisco and are pending before Chief U.S. District Judge Vaughn Walker. He is now reviewing a constitutional challenge to last year's immunity law, which the Obama administration is defending.

 

 

 

Walker is also considering a challenge to the surveillance program by the Al-Haramain Islamic Foundation, a now-defunct charity that was inadvertently given a government document in 2004, reportedly showing that its lawyers had been wiretapped during an investigation that landed the group on the government's terrorist list.

 

 

 

The Obama administration is also opposing that suit and has challenged Walker's order to let Al-Haramain's lawyers examine the still-classified surveillance document.

 

 

 

The administration's new filing asks Walker to dismiss a second suit filed in September by AT&T customers that sought to sidestep the telecommunications immunity law by naming only the government, Bush and other top officials as defendants.

 

 

 

Like the earlier suit, the September case relies on a former AT&T technician's declaration that he saw equipment installed at the company's San Francisco office to allow NSA agents to copy all incoming e-mails. The plaintiffs' lawyers say the declaration, and public statements by government officials, revealed a "dragnet" surveillance program that indiscriminately scooped up messages and customer records.

 

 

 

The Justice Department said Friday that government agents monitored only communications in which "a participant was reasonably believed to be associated with al Qaeda or an affiliated terrorist organization." But proving that the surveillance program did not sweep in ordinary phone customers would require "disclosure of highly classified NSA intelligence sources and methods," the department said.

 

 

 

Individual customers cannot show their messages were intercepted, and thus have no right to sue, because all such information is secret, government lawyers said. They also said disclosure of whether AT&T took part in the program would tell the nation's enemies "which channels of communication may or may not be secure."

 

 

 

SOURCE: http://www.sfgate.com/cgi-bin/article.c ... .DTL&tsp=1

 

 

 

A few things.

 

 

 

First, I have to say that the Department of Justice under Obama has been the largest failure of his administration thus far. They still haven't released the torture memos that they have, even though Holder wants them to. Apparently the Republicans are blocking the nominations of two key people that will define torture for what it is: torture, and illegal. Why? Because unless Obama drops the talk of releasing these torture memos that will allow for the prosecution of the Bush admin, they will continue to filibuster these nominations [1]. Now I'm not sure if Obama is just shifting the blame onto the Republicans and is listening to one of the CIA's most important people, John Brennan [2], but ultimately it doesn't matter if they're blocking the nominations or not, it's NOT an excuse.

 

 

 

Second, this administration's DOJ is even more totalitarian than Bush's with regard to telecom immunity. Under Bush, supposedly the government could be held accountable, but private enterprise could not. The DOJ is now pushing to bring the government under that same protection by dropping charges against the Bush administration, and using "state secrets" as their excuse. [3]

 

 

 

Glenn Greenwald notes many of these injustices in his blog, here: [4]

 

 

 

Lastly, I'm very much aware that Obama doesn't want to make enemies over at the CIA as JFK did after the "Bay of Pigs" fiasco, but this is no excuse. He is failing to do his job as President by protecting the Constitution with all of his power. This is not justifiable, and it's very dangerous.

 

 

 

My only hope is that the right side of the political spectrum that wants to chastise Obama for every little thing will jump on board and help the left's voices to grow stronger. Keith Olbermann has begun the charge among the MSM

, so maybe Sean Hannity will be interested in helping...unless he's still busy criticizing Obama for his criticism of the United States and Jeremiah Wright. [6]

[Da_Latios]

Enjoy your communism, America.

[magekillr]

Enjoy your communism, America.

 

 

 

It's not communism. Communism involves direct democracy. America is a Republic, and by default cannot be Communist. Second, Communism is not tied at the hip with totalitarianism.

 

 

 

Lastly, if this is Communism, we've been communist since 2001.

[Da_Latios]

Well, then, enjoy your lack of freedom and justice.

[user1991]

Well, then, enjoy your lack of freedom and justice.

 

 

 

More accurate.

 

 

 

Once again, unjustified government power using unjustifiable force to take away the rights and freedoms of the people, whilst at the same time covering for the sick practices endorsed by the previous administration under the guise of "safety".

[Faux]

Well, then, enjoy your lack of freedom and justice.

 

Australia isn't exactly the apex of freedom either.

[user1991]

Well, then, enjoy your lack of freedom and justice.

 

Australia isn't exactly the apex of freedom either.

 

 

 

Ausfalia has been censoring video games since the mid 90s. Conroy also wants to bring in a ridiculous mandatory nationwide filter.

 

 

 

So actually, shadow is right.

 

 

 

Both America, Australia, and the UK are authoritarian and are becoming increasingly totalitarian with their constant interventions in areas in which government should never have any input whatsoever.

[magekillr]

Some updates about this:

 

 

 

Fact #1: This is a civil lawsuit for money damages and/or equitable relief. Plain and simple, the Plaintiff seeks monetary damages against the Defendants. I.e., you committed a wrong, and the only way to make up for that wrong is pay money. Or in the alternative, it seeks equitable relief -- i.e., an injunction -- to prevent a future wrong.

 

 

 

Fact #2: The Motion to Dismiss was filed by the government Defendants in their official capacity. Two important points here. First, this is a Motion to Dismiss claims, or in the alternative, for summary judgment. I can tell you as a matter of legal practice, any time a government is sued, there is a Motion to Dismiss filed, primarily to see if you can "knock out" at least some of the claims, or if you get lucky, the whole lawsuit. Second, the "official capacity" part is key. Simply stated, DOJ is moving to dismiss Defendants "The United States of America," "President Barack Obama," "Attorney General Eric Holder," etc. in their official capacity. Official capacity is just like it sounds...you've been sued by virtue of the fact that a. you are a government agency or b. you work for that government agency in some official way.

 

 

 

Fact #3: As a general rule, governments and government official have immunity for acts in their official capacity. This is nothing new. It is the concept of "sovereign immunity" which has been around for hundreds of years. The general rule is established so that Joe Blow cannot simply "sue the government" for every perceived wrong that government does, because it would not be in the public interest for ALL for the government, as an entity, to have to defend said lawsuits or pay out damages in its official capacity. However, and this is critical, this does NOT mean a Plaintiff can't sue a government employee for wrongful acts committed in the scope of their employment in their personal capacity. Indeed, in the lawsuit at hand, DOJ makes clear that they are filing this Motion for the government Defendants sued in their official capacity, despite the fact that many, many more are sued in their official capacity. Keep in mind, there are immunities available to those in their personal capacity as well, which DOJ also raises. But those immunities are generally not as strong as the immunity provided for those acting in an official capacity.

 

 

 

Fact #4: Asserting a defense in a lawsuit does not in any way equate official government policy. Trust me on this one. I've had to assert defenses to lawsuits early on in the stages of litigation, as is the case in the FISA lawsuit. And it does NOT mean in any way that it is some sort of policy declaration. It is doing what is necessary to defend my client from the relief sought by the Plaintiff. Plain and simple. And that is especially true at the Motion to Dismiss stage. Indeed, these issues are going to be litigated not only at the trial stage, but at the appellate stage. And believe me, DOJ is going to continue argue immunities, because that's their job. Not only in this lawsuit but in all future lawsuits. It is their job not to create policy, but to defend their client. They are not simply going to roll over and say, "OK, you win, we'll pay you a truckload of money." Not going to happen. And certainly not going to happen at this early stage of the game.

 

 

 

Now, it has been suggested that someone the new assertion of sovereign immunity made via the Patriot Act, FISA, etc. is breathtaking and such, but I just don't see it the way others do. I look at it from the perspective of the government lawyer, and if there is another argument to be advanced to defend my client on immunity grounds, even if that argument hasn't been advanced before, I'm going to use it. And I'm reasonably certain that is what the DOJ attorneys are doing...their job to defend their client. It has also been suggested that Congress, in passing the telecom immunity in the FISA revision claimed "Well, you can always sue the individual government actors," and that somehow, this Motion goes against the grain of that claim. This Motion doesn't change that one iota. Again, this is a Motion filed on behalf of the United States of America and related government Defendants, in their official capacity. If a Plaintiff finds that Wendy Wiretapper, working for NSA, violated a Plaintiff's civil rights, that lawsuit can still continue, but still be subject to personal immunities for official acts.

 

 

 

I am still wary of where this is going. Clearly, I'd like some more policy assurances from the Obama administration with respect to the wiretapping issue, and changes in the law.

 

 

 

But you can't blame the lawyers for defending their client. And you can't translate what they are doing to defend their client as a policy decision. At least not yet.

 

 

 

I've read other lawyers that have represented the government confirming this. This is lawyering, not policy, and doesn't necessarily indicate anything about the Obama Admin's policy re: surveillance.

 

 

 

However, the problem that I have with these arguments is that while they're ethically correct in a court of law and could set dangerous precedent if overturned, Obama's votes to continue FISA while in the Senate certainly doesn't help this argument along. For the time being, I will see Obama guilty as I charge him, as he voted for telecom immunity on more than one occasion. Maybe it was pragmatism, maybe it wasn't. What I know is that he voted for it, and for now, I'll take the lawyers' positions as the administration's until I have reason to do otherwise.

[Yomyth105]

Can you really say you're surprised? I mean Obama is president... the american people for some reason want this :roll:

[magekillr]

Can you really say you're surprised? I mean Obama is president... the american people for some reason want this :roll:

 

 

 

Obama being President really has nothing to do with this, except that once something corruptible like this is instated, it will not leave until there is a scandal like there was with Water Gate. After Obama the next administration will only continue this, unless it's someone like Dennis Kucinich, and it will continue expanding until there's a scandal or public outcry. So no, I'm not necessarily surprised, but as the lawyer I quoted noted, we don't yet know the administration's position on this....yet. It doesn't look good, though.

[mmmcannibalism]

yeah the whole wiretapping was overdoing it, not to say we didnt need to check some or all of those people but due process and such should have been required

 

 

 

communism and democracy arent directly related, you can have a communistic economy and still allow voting on things such as who will be in charge how to appropriate money etc.

 

 

 

Lets be realistic about the witch hunting, although it was a civil rights violation what actually happened isnt that terrible. This isnt something like arresting people for political beliefs or burning someone at the stake, its a small violation of search and seizure that affected very few people directly. If we start hunting down everyone that barely violated any law we would probably have to throw every politician lawyer etc. in jail. FDR violated the constitution quite a few times(with good intent, same could be argued about Bush), Most presidents have done something that could be viewed as illegal. Again, if what Bush had done was a major breach of rights I would be all over hunting down everyone involved, but this would just breed bad will.

 

 

 

The torture thing, agree we needed to end waterboarding but I think there is a problem with law here. Waterboarding is on the borderline of torture(no long term physical torture) and is certainly less heinous then a lot of other things we could have been doing. As long as we end it I think its enough of a change; and I dont think we need to go arresting every former white house employee.

[Robert_de_Sable]

You are virtually an Anarchist, do you realize that? I don't understand your problem with government wiretaps. What on earth could you have on your conversations that the government would care about? Unless you're talking about blowing up Parliament, there's no reason for you to hide anything.

[magekillr]

You are virtually an Anarchist, do you realize that? I don't understand your problem with government wiretaps. What on earth could you have on your conversations that the government would care about? Unless you're talking about blowing up Parliament, there's no reason for you to hide anything.

 

 

 

How about I have rights, and it's the President's job to defend them? Apparently you don't care if your rights are trampled on, so long as you "live unhindered." Sorry, I can't adhere to such totalitarianism that can and will be abused if it continues. You might like to pretend that the fourth amendment to the Constitution doesn't exist, but I don't. It's as real as my right to free speech, probably the second most important amendment behind the first. I'm sorry that you embrace such Orwellian rules like these, perhaps when your rights are infringed upon "directly" after an ever expansion of the government's secrets you'll understand why things of this nature are dangerous and illegal.

 

 

 

I'm certainly not an anarchist. I am protecting the document by which this government and country was founded upon. If anything, I'm a statist.

[Robert_de_Sable]

You are virtually an Anarchist, do you realize that? I don't understand your problem with government wiretaps. What on earth could you have on your conversations that the government would care about? Unless you're talking about blowing up Parliament, there's no reason for you to hide anything.

 

 

 

How about I have rights, and it's the President's job to defend them? Apparently you don't care if your rights are trampled on, so long as you "live unhindered." Sorry, I can't adhere to such totalitarianism that can and will be abused if it continues. You might like to pretend that the fourth amendment to the Constitution doesn't exist, but I don't. It's as real as my right to free speech, probably the second most important amendment behind the first. I'm sorry that you embrace such Orwellian rules like these, perhaps when your rights are infringed upon "directly" after an ever expansion of the government's secrets you'll understand why things of this nature are dangerous and illegal.

 

How about I have rights, and it's the President's job to defend them?

 

It's the President's job to govern America as he sees fit.

 

 

 

Apparently you don't care if your rights are trampled on, so long as you "live unhindered."

 

No, I do not. This doesn't prove anything.

 

 

Sorry, I can't adhere to such totalitarianism

 

I couldn't care less what you can and can't adhere to.

 

 

You might like to pretend that the fourth amendment to the Constitution doesn't exist, but I don't.

 

 

I'm Canadian, so I haven't a clue what this "fourth amendment" is, but from what I can tell it probably relates to privacy?

 

 

 

...you'll understand why things of this nature are dangerous and illegal.

 

Dangerous? Yes. Necessary under extenuating circumstances? Yes. Illegal? No. There is no law that insures privacy.

[fastortoise]

They've been monitoring all of our calls and e-mails before any of us were born. Why start caring now?

[mmmcannibalism]

4th amendment is protection from illegal search and seizure, if I recall the whole bill it basically lays down that the government/police needs just cause to search/wiretap you.

 

 

 

edit--

 

 

 

here is the text

 

 

 

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

 

 

 

extending this to include the fact we have phones now, the gov/police must have probably cause and a specific warrant to search your house or tap your private communications. One note I would like to make is that nothing Bush did was technically against this if the procedure was correct.

[user1991]

You are virtually an Anarchist, do you realize that? I don't understand your problem with government wiretaps. What on earth could you have on your conversations that the government would care about? Unless you're talking about blowing up Parliament, there's no reason for you to hide anything.

 

 

 

 

 

It has nothing to do with lack of government, but everything to do with the role of government in privacy of the citizens. The government has no right to be able to read everyone's emails/listen to their phone calls/put cameras in their houses. You can keep with the whole "only wrongdoers need be afraid" bullcrap but if you can't see how easily that can be abused by leadership then you're too far gone in the first place.

 

 

 

The facts have shown that governments cannot be trusted with this much power. It inevitably leads to abuse. I know that you're proudly an authoritarian and a totalitarian, so you probably don't care about the people having a voice, but in a democracy - stuff like this cannot be allowed to happen.

[PoorLepRecon]

The phone tapping was necessary. I don't think that it is right, but it is necessary. I would rather have my phone tapped to prevent terrorism, than to allow terrorists to freely communicate in the U.S. at will.

[l0l0lpur34]

The only comment I'll make on this thread is that the "nothing to hide, so don't care if privacy is invaded" attitude a lot of people have is a slippery slope.

[PoorLepRecon]

The only comment I'll make on this thread is that the "nothing to hide, so don't care if privacy is invaded" attitude a lot of people have is a slippery slope.

 

 

 

This could eventually evolve into a 1984-esque situation.

[mmmcannibalism]

The only comment I'll make on this thread is that the "nothing to hide, so don't care if privacy is invaded" attitude a lot of people have is a slippery slope.

 

 

 

agreed, the problem is that this surveillence was limited to conversations between americans and foreigner contacts(I believe all middle east). Secondly, the taps were only supposed to occur if there was reason to believe that the contact might be closely associated with a terrorist organization. If they went beyond this its a bit of a problem, but I dislike overstatements of what happened with these taps.

[Robert_de_Sable]

The phone tapping was necessary. I don't think that it is right, but it is necessary. I would rather have my phone tapped to prevent terrorism, than to allow terrorists to freely communicate in the U.S. at will.

 

You hit the nail right on the head there. Well said.

[user1991]

The phone tapping was necessary. I don't think that it is right, but it is necessary. I would rather have my phone tapped to prevent terrorism, than to allow terrorists to freely communicate in the U.S. at will.

 

You hit the nail right on the head there. Well said.

 

 

 

No.

 

 

 

Freedom is more important than safety.

[Robert_de_Sable]

The phone tapping was necessary. I don't think that it is right, but it is necessary. I would rather have my phone tapped to prevent terrorism, than to allow terrorists to freely communicate in the U.S. at will.

 

You hit the nail right on the head there. Well said.

 

 

 

No.

 

 

 

Freedom is more important than safety.

 

So you'd rather die free than live safely?

[PoorLepRecon]

The phone tapping was necessary. I don't think that it is right, but it is necessary. I would rather have my phone tapped to prevent terrorism, than to allow terrorists to freely communicate in the U.S. at will.

 

You hit the nail right on the head there. Well said.

 

 

 

No.

 

 

 

Freedom is more important than safety.

 

 

 

What good is freedom if you arn't alive to use it?