Court: Feds Can Spy On Americans Without Warrants With No Legal Repurcussions

from the uh,-what-now? dept

We’ve followed the Al-Haramain case against the US government for a while through all of its ridiculousness. This was the challenge to the government over warrantless wiretapping, which went through crazy twists and turns, because information on the wiretapping was deemed classified — even though it was published by reporters. The only reason the case exists in the first place is that the government accidentally leaked a document that proved that such wiretapping happened. Earlier cases to challenge the warrantless wiretapping in general failed on the grounds that the people suing had no standing since they couldn’t prove that they’d been spied upon without a warrant (and if this sounds like something Joseph Heller would write about, you’ve got the right idea).

Eventually, the court actually ruled that the feds violated wiretapping laws, but then there were questions of what the court could actually do about it. It turned into a wrist slap for the government, with it being ordered to pay $20,400 to each of the two lawyers who represented Al-Haramain.

However, earlier this week, that got overturned. The appeals court has basically said that even though Congress passed a law that said the feds could not eavesdrop on Americans without a warrant, it didn’t waive sovereign immunity rights for the government, which lets the government basically wave away any lawsuits. And thus, the government can ignore wiretapping lawsuits — even in the one and only case where there’s clear evidence of it violating the law. Yeah.

Think about that one for a second.

And then… realize it gets worse. That’s because in a different ruling, by the same court, a few months ago, the court said that someone couldn’t sue the telcos for helping the government warrantlessly wiretap Americans, in part because they could still sue the government. Yet now they’re saying that you can’t actually sue the government either (once again, paging Joseph Heller).

The court tries to get around this by suggesting that you might be able to sue individuals within the government (though it then goes on to reject such an attempt in this case) or to recover actual monetary damages, if you can prove that such damage occurred. But “distress” apparently doesn’t qualify since there’s no monetary issue there. So, as long as the government spies on you illegally (and everyone seems to admit that it’s illegal) without doing anything with that info that is causing you monetary damages, even if you find out about it, you probably can’t do anything about it.

Yeah. That doesn’t seem right.

The court itself admits that this result is “anomalous and even unfair,” and says that’s really Congress’ problem because of the way it drafted the statute. Either way, the end result seems pretty crazy, and gives the federal government wide ability to spy on people at will, even as the law says they can’t. This is a situation that Congress now needs to fix, though it almost certainly will not do so.

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Comments on “Court: Feds Can Spy On Americans Without Warrants With No Legal Repurcussions”

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The Mighty Buzzard (profile) says:

Re: Congress's problem?!?

The Judiciary is there to strike down laws that are unconstitutional or are in direct conflict with other laws. It isn’t there to pat Congress’s hand and say “there there, we’ll fix it” when they half-ass it and forget to put in an important part of a law. Believe me, you really don’t want to give an unelected body the power to arbitrarily add things to the law.

MikeC (profile) says:

Re: Re: Re: Congress's problem?!?

Actually they can’t do anything in this case.. There is in effect a law that says you can’t wiretap without a warrant, but there is no penalty in the law for doing that or a recourse for cases where it can be proved. Basically there is nothing judicial, they can’t strike down the law, that does no good since it already says that it’s illegal. They can only say there is no law under which you can claim redress for damages done. They can’t fix that.

John Fenderson (profile) says:

Re: Re:

Is it just me that gets the sickening feeling that it is going to take a massive revolt to get this country back where it belongs?

It’s not just you. I think so, too.

The problem is that it’s very rare that a revolution results in a government that is better than the one that caused the revolution.

Scary times.

Machin Shin (profile) says:

Re: Re: Re:

Yes, I am not hoping for a revolution per say though. I am wanting the people to wake up and take their country back. Go back to the things that made this nation great. Toss out all these corrupt buffoons and all their corrupt laws.

They Government has been running far to long only moving in one direction. Laws are added but rarely ever removed. The end result is this mess of laws on top of laws.

We need to clean out the system, purge all the useless laws and consolidate the ones that are good. It has gotten so that our legal system is bogged down by all the junk so that it is no longer even functioning.

John Fenderson (profile) says:

Re: Re: Re: Re:

On the positive side, it’s also true that the US has been through periods where things were much, much worse than they are now. Much more corruption, much more theft, much more trampling of rights.

…and we recovered from those times. We’ll recover form these, too. But it will take, as you say, the people demanding it.

Not an Electronic Rodent says:

Re: Re: Re:2 Re:

Much more corruption, much more theft, much more trampling of rights.

Assuming that’s true, the problem you have is that while it might have been more (and recovered from) it was also more obvious… I’m not convinced that a large enough portion of the populace have noticed how far rights they woudl assume they have are actually eroded and that’s kinda vital for any putative recovery.

weneedhelp (profile) says:

Re: TV's

“We, the people are the rightful masters of both Congress and the courts not to overthrow the Constitution, but to overthrow men who pervert the Constitution.”

Abraham Lincoln

“The right of citizens to bear arms is just one guarantee against arbitrary government, one more safeguard against the tyranny which now appears remote in America, but which historically has proved to be always possible.”

Senator Hubert H. Humprey (D-Minnesota)

Remote in America, yeah right.

Anonymous Coward says:

Re: Re: TV's

“We, the people are the rightful masters of both Congress and the courts not to overthrow the Constitution, but to overthrow men who pervert the Constitution.”
Abraham Lincoln

Spoken by the man that tried to arrest members of the supreme court and congress, as well as made efforts to prevent state legislators from meeting. Notice that he didn’t mention the executive branch in that quote. There’s all sorts of good things you can say about lincoln, but I’m not so sure that he would have been against the unlimited executive powers that you see today.

Anonymous Coward says:

Time for a Restart

Can we detain Obama, his administration along with senior military officials and advisors forever and never charge them under the newly passed NDAA?

They are providing support to Al Qaeda and other terrorists groups in Syria, elsewhere in the Middle East and Africa.

No trial needed. Let’s lock those terrorist enablers up. Fucking cowards. Won’t even play by the rules they put in place.

It’s time to remove everyone in power from any further decision making in this country and start fresh. They have had much time to correct mistakes they and those before them have made, but they chose not to or are too stupid to do so. The time to do so is fast approaching. The ends will justify the means. If you have had any role in the government to date, you are no longer fit to do so. Some qualified individuals will not doubt be thrown out; however, it will be worth it. Prepare…

John Fenderson (profile) says:

Re: Time for a Restart

Can we detain Obama, his administration along with senior military officials and advisors forever and never charge them under the newly passed NDAA?

It won’t do any good. Obama isn’t the problem. The problem is that the entire government has been systemically subverted by ultra-wealthy corporations and individuals. The corruption is in the bureaucracy itself, and transcends any group of politicians.

DCL says:

Circular logic is circular...

How does ‘sovereign immunity’ overrule the Constitution (and amendments) that give that same government its ‘sovereign immunity’ that it is using to avoid responsibility?

In essence they are ignoring the Constitution and should be ignoring what they claim gives them the right to have this power over the People. I guess it is ‘selective application’ of the Constitution.

btr1701 (profile) says:

Re: Circular logic is circular...

> How does ‘sovereign immunity’ overrule
> the Constitution (and amendments) that give
> that same government its ‘sovereign immunity’
> that it is using to avoid responsibility?

It doesn’t. The basis for this suit was a civil claim for damages as a result of the government’s violation of statute. It wasn’t a constitutional claim.

If the plaintiff in question here was a criminal defendant and the government was trying to use the information they obtained through warrantless wiretaps against him in his criminal trial, his claim of 4th Amendment violation would not be barred by sovereign immunity. There’s no such thing as soveriegn immunity from a suppression claim arising from a violation of the Constitution itself.

But the plaintiff here wasn’t being charged with anything. There was no criminal trial (and hence no evidence to suppress via the 4th Amendment). This guy was just pissed when he found out that the government spied on him without a warrant and sued based on the fact that the government violated the congressional statute prohibiting such practices. However, unless Congress specifically waives the government’s sovereign immunity when it passes such laws, it essentially creates a toothless paper tiger, where the agencies being sued can just invoke immunity and have all lawsuits dismissed.

DCX2 says:

Re: Circular logic is circular...

The Court can only strike down laws that violate the constitution. However, the wiretapping laws do not violate the constitution, so there is nothing to strike down.

The problem is that the feds broke the law, but the Court cannot do anything about the Executive branch violating the laws because it’s not the Court’s responsibility to “faithfully execute the law”.

The only real answer to an executive that refuses to obey the law is impeachment, which is what happened with Nixon. Except the President who is responsible for this isn’t serving anymore…

Rapnel (profile) says:

Re: Re: Circular logic is circular...

Aren’t their quite a few current members of Congress that can be held to account for their votes for those laws that passed by both houses and were signed in by the past president?

By held to account I do not mean hanging out and waiting for elections where those same elections are grossly over influenced by and for money. Clearly this is not ideal when party structures have fully adapted to that influence leaving the actual people that vote groveling for some sanity in representation that first and foremost abides the US Constitution in both letter and spirit.

By held to account I mean that every currently standing yes vote on that nice bundle of laws pushed by an authoritarian executive administration be grouped together and impeached? Then impose a (the going modern significant fine for this day and age, say $600,000.00US)on all yes votes up to and including final signatories.

You see, I’m of the mind that we, the people, are the authoritarian masters of our government only I just can’t see how these other branches can be brought to task, in a meaningful way, without force. It is a quandary that will only get worse as illustrated by the current situation.

If this topic does not or can not find its way to the US Supreme Court and in relatively short order at that then we are supremely screwed and will, in fact, be a corralled people.

As it stands the US Government executive branch led and representative financed departments are, officially, above the law. That is no conspiracy theory. Now, who is the authority henceforth? Cookie-puss or her supervisor?

To anyone that made it this far: if you happen to be thinking that the economy is going to save you from making any sort of decision or from giving any serious thought to this matter and its potential for some pretty significant repercussions for this and future generations then I’ll take odds against and place my bet.

The progression in the last decade, if you’ve been paying attention, truly paying attention, is nothing short of ominous. Prophetic signs they are not. This is today.

I’m at a bit of a loss. I’m horrified by how potentially significant that loss truly is. We’re so young, we’ve come so far, we’ve cradled the bastard step son of capitalism and even now we still let it suckle. We’ve inadvertently built and allowed a humongous engine of bureaucracy that seems to see us and treat us for what it truly wants us to be – the engine of its economy, not much more, not much less. I’m afraid that they’re forgetting something. I am afraid for the consequences that will result if they can not be made to remember that something. We do not have enough guns and, more importantly, we do not seem to have enough able bodied men to wield the ones we do have. If history has anything to teach us it has taught us that this cyclical road is short. The last laugh will be a dying one and the last tear will be dry.

Holy sweet mother of a comment box! I think I’m pissed.

DCX2 says:

Re: Re: Re: Circular logic is circular...

You can’t really do anything to Congress. There’s nothing wrong per-se about the wiretapping laws; the laws themselves are not unconstitutional. The only power the Court has (even SCOTUS) is to strike down unconstitutional laws.

Compare this to the Military Commissions Act of 2006. Congress passed this law. The President enforced it. Yet the law itself was unconstitutional, so SCOTUS struck it down.

But in the wiretapping case, the President was not enforcing any law passed by Congress. There’s nothing for a Court to strike down.

You are right, though, that the Executive branch is above the law. It’s called sovereign immunity. The only constitutional response is to impeach the President or vote him out.

Anonymous Coward says:

Re: Re: Re: Circular logic is circular...

Wait, I just now found it. It’s right there in the same section that states that the government can outlaw prayer in school but not abortion, can infringe on the right to keep and bear arms, can outlaw certain pictures, can stop you at a checkpoint without cause, can search your vehicle and phone without a warrant, can kidnap people in a foreign country and jail them in another foreign country without charge or trial, and can impose a tax penalty on anyone who doesn’t purchase health insurance. Yep, it’s all in there.

btr1701 (profile) says:

Re: Supreme Court next?

> I’m not American, but sut surely if this
> isn’t begging for constitutional challenge,
> I dont know what is.

The notion of soveriegn immunity has been thoroughly challenged and litigated since the early days of the Republic. The Supreme Court has consistently upheld it and said it is not inconsistent with or prohibited by the Constitution. It’s about as settled as law can get at this point.

This was Congress’s fuck-up. They failed either through mistake or intention to include the standard waiver of immunity that is included in most laws like this as a matter of routine.

The Court of Appeals was right. However absurd and unfair this situation is, it’s a mess of Congress’s own making and it’s up to them to fix it. The courts have no power to do so.

Rekrul says:

Re: Re: Supreme Court next?

The Court of Appeals was right. However absurd and unfair this situation is, it’s a mess of Congress’s own making and it’s up to them to fix it. The courts have no power to do so.

Why would Congress have even the slightest desire to “fix” this? The majority of them want the government to have as much power as possible. In their opinion, this is a good thing.

ebilrawkscientist (profile) says:

USA isn't America!

ZOMG! Its true! The entire Western Hemisphere, thirty five countries from Greenland all the way down south to Cape Horn thats the America’s! The United States alone is just ONE little country. And I’m pretty damn sure those warrants will be needed outside of the United States. So youse federales STFU and git outa my part of the America’s!

urza9814 says:

A legal opinion

I forwarded this post along to my father, an attorney (though this isn’t quite his area of expertise) and I thought his reply might be of interest to some of you:

“Theoretically, if there’s a conflict of opinions that aren’t distinguishable and when the second opinion didn’t specifically overturn the first one, there would be basis for a Supreme Court appeal.. I don’t think that would be advisable given the current court composition (nice alliteration, eh?) While I didn’t read the first opinion, if only the Telcos’ were sued, then the case would be distinguishable. I think maybe you could file another claim against the telco’s citing the second opinion as a bar to action against the feds. I think it would depend on whether the first claim was dismissed or actually adjudicated.”

Thomas (profile) says:


has not been a part of the U.S. government for a long long time. total disregard for the Constitution is considered acceptable by most federal agencies anyway. Imprisonment without trial? Perfectly fine. Imprisonment without counsel? Perfectly fine. Execution without trial? Perfectly fine. Illegal wiretapping? Perfectly fine. Holding people indefinitely and incommunicado? Perfectly fine.

People should not expect the U.S. government to pay attention to such things as laws and the constitution.

Anonymous Coward says:

yet every other country worldwide that does the same thing is condemned by the US. that now gives those other countries a really good reason to tell the US to go fuck itself, stop telling us what to do and not do when you are doing the same thing! has anyone actually noticed how almost every democratic country is becoming the same as eg China and Iran?

Anonymous Coward says:

You’d think they could issue an order to suspend the illegal operations. I don’t know if contempt of court is enforceable against the executive. It would probably be up to SCOTUS to decide.

However, the ultimate responsibility comes to the Congress to change the law and the American voter to change Congress. Unfortunately, you can’t impeach a President that is already out of office. Thanks for the Constitutional mess GWB.

DCX2 says:

Can sovereign immunity be implicitly waived?

FISA was written in response to executive law-breaking. Additionally, other statutes make it illegal for private citizens to wiretap.

Therefore, one could conclude that the purpose of FISA was to explicitly restrict the powers that the Executive branch may exercise.

Since Congress obviously intended for FISA to apply to the Executive branch, couldn’t the argument be made that Congress implicitly waived sovereign immunity by intentionally targeting the Executive branch with the FISA legislation?

Jefferson (profile) says:

How to get this law fixed real quick.

1. Get you and a friend to join forces. Agree to keep everything extremely squeaky clean. (No lobbyist, etc.)
2. You run for congress and win. Your friend gets into the FBI.
3. Your friend wiretaps all the other members of congress, their wives, friends, business associates and stuff.
4. You recount all the sordid deals on the house floor and motion to impeach every single house member.
5. ????
6. Profit!

btr1701 says:

Circular logic is circular...

> By held to account I mean that every currently standing yes
> vote on that nice bundle of laws pushed by an authoritarian
> executive administration be grouped together and impeached?


Members of Congress cannot be Impeached. Only the president/vice president and members of the judiciary can be impeached.

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