Dianne Feinstein's Bragging About NSA Surveillance Program May Finally Result In It Being Declared Unconstitutional

from the ooops dept

This is quite an incredible story that’s unfolding about a new opportunity for a Constitutional challenge to the FISA Amendments Act, which has enabled broad NSA surveillance. If you haven’t been following the details (and even if you haven’t been following all of this closely), the specifics may be a bit confusing, so we’ll try to go piece by piece through the history here to explain the events leading up to a new Constitutional challenge being placed on the law, which the Supreme Court had previously effectively wiped out — in large part due to false information presented by the Solicitor General, who now appears to be not at all happy the intelligence community led him to lie to the Supreme Court. And it may have all unravelled because of Dianne Feinstein’s gloating and bragging about how important the FISA Amendments Act is.

First up: the FISA Amendments Act (FAA) was passed in 2008, after Congress claimed that the intelligence community was hamstrung in important areas of surveillance. Much of the debate over the law was focused on the fact that it gave telcos retroactive immunity for anything illegal they might have done regarding President Bush’s warrantless wiretapping program, which was only revealed by the NY Times a few years earlier. But, even more important than that was that the FAA more or less authorized continued warrantless wiretapping by the intelligence community. In 2011, the FAA was up for renewal. Some in the Senate sought to use the distraction (that year) over the “debt ceiling” to sneak through an early renewal with no debate, and Senator Ron Wyden put a hold on it, demanding more answers about how many Americans were being spied on. He eventually lifted the hold in exchange for a one-year extension and a promised debate over the FAA.

Fast forward to the end of last year, with the FAA set to expire yet again, and Senate Intelligence Committee boss Dianne Feinstein, who had originally made that “deal” with Wyden, tried very hard to avoid having any debate. Eventually, at the very end of December, she allowed a brief debate, in which she showed up up to insist that the FAA had to be renewed or we’d all be at risk. As we noted at the time, her reasoning was somewhat laughable, where she held up a pretend piece of paper with a supposed “classified” reason for why the FAA was so important. Remember that speech, because it’s going to become quite important a little later on in this story.

Parallel to all of this, there was a legal fight making its way through the courts, brought by the ACLU to challenge the Constitutionality of the FAA. The big question was whether or not the courts could be convinced that the ACLU had “standing” to sue, since it couldn’t prove that it had been spied on directly. Eventually, in a narrow 5-4 decision, the Supreme Court said that the ACLU had no standing. Of course, the key thing that had concerned the Justices the most was the simple question: if the program is secret, then could anyone ever challenge the Constitutionality of the program?

Solicitor General Donald Verrilli, who argued the case on behalf of the government, told the Supreme Court that of course people could have standing to challenge the law, and that the government would be required to inform defendants in cases where such information was used that it was collected under the FAA. This point is what pushed the Supreme Court over the edge to rule against the ACLU. As they noted in the majority decision:

…if the Government intends to use or disclose information obtained or derived from a §1881a acquisition in judicial or administrative proceedings, it must provide advance notice of its intent, and the affected person may challenge the lawfulness of the acquisition…. Thus, if the Government were to prosecute one of respondent-attorney’s foreign clients using §1881a-authorized surveillance, the Government would be required to make a disclosure…. In such a situation, unlike in the present case, it would at least be clear that the Government had acquired the foreign client’s communications using §1881a-authorized surveillance.

Okay, now the law has been in place since 2008. If what Verrilli said was true, then, um, shouldn’t there have been some cases between now and then where the FAA-enabled wiretapping was used? And if that’s true, then it should have been disclosed in the various cases. Except, there is no case on record where it had been disclosed.

Right, so now we jump back to Feinstein’s grandstanding about why we need to keep the FAA. In her speech on the floor, she announced that the FAA was necessary in a long list of cases:

“I’ve asked the staff to compile arrests that have been made in the last four years in America on terrorist plots that have been stopped. And there are 100 arrests that have been made since 2009 and 2012. There have been 16 individuals arrest just this year alone. Let me quickly just review what these plots were. And some of them come right from this program. The counterterrorism come and the information came right from this program. And again, if Members want to see that they can go and look in a classified manner.

[proceeds to list out eight “examples” of terrorism arrests — two with names, six are just general descriptions of plots]

… and it goes on and on and on. So this has worked. And you know, as the years go on, the intelligence becomes the way to prevent these attacks. Now that the FBI has geared up a national security unit, they’ve employed 10,000 people and information gained through programs like this, through other sources as well, is able to be used to prevent plots from happening. So in four years 100 arrests to prevent something from happening in the United States, some of which comes from this program. So I think it’s a vital program.

The lawyers for the defendants in the two named cases suddenly recognized an issue. They were named in this list, but at no point had they been told that evidence was gathered under this program. So they asked. And… the government refused to tell them the details. The NY Times took notice of this, pointing out that either Feinstein lied in her Senate statement or Verrilli lied to the Supreme Court:

In a prosecution in Federal District Court in Fort Lauderdale, Fla., against two brothers accused of plotting to bomb targets in New York, the government has said it plans to use information gathered under the Foreign Intelligence Surveillance Act of 1978, or FISA, which authorized individual warrants. But prosecutors have refused to say whether the government obtained those individual warrants based on information derived from the 2008 law, which allows programmatic surveillance.

Prosecutors in Chicago have taken the same approach in a prosecution of teenager accused of plotting to blow up a bar.

To his credit, it appears that once this all became clear, Verrilli had a crisis of conscience, suggesting that he did not knowingly lie to the Supreme Court, but honestly believed that the DOJ would reveal its use of these programs in cases. From that new NY Times piece by Charlie Savage, it’s reported that Verrilli was pretty angry about being misled and demanded some answers:

As a result, Mr. Verrilli sought an explanation from national security lawyers about why they had not flagged the issue when vetting his Supreme Court briefs and helping him practice for the arguments, according to officials.

The national security lawyers explained that it was a misunderstanding, the officials said. Because the rules on wiretapping warrants in foreign intelligence cases are different from the rules in ordinary criminal investigations, they said, the division has long used a narrow understanding of what “derived from” means in terms of when it must disclose specifics to defendants.

Either way, Verrilli followed through on this, and apparently kicked off a major “internal debate” over whether or not there was “any persuasive legal basis for failing to clearly notify defendants that they faced evidence linked to the 2008 warrantless surveillance law, thereby preventing them from knowing that they had an opportunity to argue that it derived from an unconstitutional search.” According to the article, Verrilli “argued that withholding disclosure from defendants could not be justified legally.” Eventually, even the NSA and FBI’s lawyers and James Clapper’s office agreed. The decision was made to start revealing this information going forward.

However, they also agreed to reveal to at least one defendant that the FAA was used to collect evidence against them, and that this had not been revealed. Of course, this means they get to cherry pick the “right” case.

The ACLU, however, is not waiting around. Almost immediately, it filed a case about this, arguing that the government had illegally hidden this information in response to a FOIA request. It seems like that may be the most obvious procedural way of re-raising this question, as I have no idea if there’s some way for the ACLU to directly petition the Supreme Court to reopen the case, noting that the key piece of information the Justices relied on to make their ruling was false (though, apparently, from a Solicitor General who had been misled by prosecutors).

Now, to wrap this all up, we bring it back around to Feinstein’s speech in the Senate. Remember, the whole point of her speech was to directly argue for the reapproval of the FAA. And while she equivocated a few times in describing what programs were responsible for the arrests, she clearly made references to “this program” working. However, when the lawyers for one of the defendants named by Feinstein asked the Senate Intelligence Committee for some clarification, Morgan Frankel, a Senate Intelligence Committee lawyer, responded by arguing that Feinstein wasn’t actually referring to the FAA program. Seriously.

Notwithstanding that she was speaking in support of reauthorization of Title VII of the Foreign Intelligence Surveillance Act, Senator Feinstein did not state, and she did not mean to state, that FAA surveillance was used in any or all of the nine cases she enumerated, including Mr. Daoud’s case, in which terrorist plots had been stopped. Rather, the nine cases the Chairman sumamrized were drawn from a list of 100 arrests arising out of foiled terrorism plots in the United States between 2009 and 2012 compiled by the staff from FBI press releases and other public sources.

[….] To summarize, nothing in Senator Feinstein’s remarks was intended to convey any view that FAA authorities were used or were not used in Mr. Daoud’s case or in any of the other cases specifically named. Rather, her purpose in reviewing several recent terrorism arrests was to refute the “view by some that this country no longer needs to fear attack.” Thus, because Senator Feinstein was neither relying on, nor attempting to convey, any information about the use or non-use of FAA authorities in any of the nine cases, there are no “assessments, reports, and other information” in the Committee’s possession to which Senator Feinstein referred in her comments, pertaining to FAA surveillance with respect to Mr. Daoud’s case.

Did you get that? So, what they’re now saying is that Senator Feinstein went to the floor of the Senate to argue strongly in favor of renewing the FAA, and she named a bunch of cases, clearly stating that this program was necessary because of those cases — but she didn’t mean to imply that it was ever actually used in any of those cases. And, in the meantime, we now find out that even in cases where it has been used, no one’s been told about it, despite the law requiring defendants to be told — and the Solicitor General telling the Supreme Court they would be told.

So, it appears that both Verrilli and the Supreme Court got duped by the intelligence community, while Feinstein clearly misled the Senate and the American public by pretending that the FAA had been used to stop terrorism, but when called on it, now pretends she meant no such thing. Thankfully, however, her attempt at misleading the public by bragging about these arrests may have now (finally) kicked off the legal rationale for a case to prove that the FAA is, in fact, unconstitutional.

Filed Under: , , , , , , ,

Rate this comment as insightful
Rate this comment as funny
You have rated this comment as insightful
You have rated this comment as funny
Flag this comment as abusive/trolling/spam
You have flagged this comment
The first word has already been claimed
The last word has already been claimed
Insightful Lightbulb icon Funny Laughing icon Abusive/trolling/spam Flag icon Insightful badge Lightbulb icon Funny badge Laughing icon Comments icon

Comments on “Dianne Feinstein's Bragging About NSA Surveillance Program May Finally Result In It Being Declared Unconstitutional”

Subscribe: RSS Leave a comment
Anonymous Coward says:

“To summarize, nothing in Senator Feinstein’s remarks was intended to convey any view that FAA authorities were used or were not used in Mr. Daoud’s case or in any of the other cases specifically named.”

To summarize, (what I read is) she said they mattered, but she didn’t mean to say that cause we’re not admitting that this happened since we don’t want to give someone ‘standing’ to test the legallity of programs we know aren’t legal.

Nastybutler77 (profile) says:

There’s no question Feinstein has been caught in a lie. The only question is did she lie when she said “There have been 16 individuals arrest just this year alone. Let me quickly just review what these plots were. And some of them come right from this program. The counterterrorism come and the information came right from this program,” or is she lying now when she says essentially, “yeah that’s what I said, but that’s not what I meant”? Either way, does she not realize how bad this makes her look?

Anonymous Coward says:

Re: Re: Re: Re:

It works the other way around too.

I said it the other way around.

When Edwards said it, he said the ?dead girl? part first. See, it’s funny that way, ’cause then the ?live boy? bit sneaks up on you at the end.

?The only way I can lose this election is if I’m caught in bed with either a dead girl or a live boy.?
????? ????? ??Edwin Edwards

For Ms. Feinstein, well, we can’t ignore the obvious, so it goes the other way around:? The ?dead girl? bit goes the very end.

You see? I said it the other way around.

Brazenly Anonymous says:

Re: Re: Re:

Actually, here’s an idea:

What if we all stopped “getting over it” so we can actually get them to stop lying. Things work out much better that way.

If your incumbent isn’t as the blazing sun unto the darkness when compared with the rest of Congress, boot them out. Vote for anyone else, what’s the worst they could do? If we start with the next election cycle, Congress will still be all but paralyzed due to the partisan split.

Do it again and again until we convince them to compete against each other. Then, slowly, we keep more and more honest reps while all the trash goes out. If any of the good ones go bad, out they go.

John Fenderson (profile) says:

Re: Re:

The same way you make any other Constitutional amendment.

It’d be really hard to do, though, and lots of people (myself included) would not be in favor of it despite the emotional appeal.

Remember, the Constitution defines treason specifically and narrowly for a reason. With your definition, “treason” would easily become a petty political weapon with disastrous consequences.

Brazenly Anonymous says:

Re: Re: Re: Re:

No, not criminal per say, but something like the court martial system with a dishonorable discharge and a prohibition from holding any further official government position would do the trick. Of course, no pensions for dishonorable discharges either.

I’d suggest that writing a bill or an amendment to a bill that passes and is later found to be unconstitutional should begin proceedings, as should voting in favor of three of them. Proceedings would be conducted to determine whether there was a reasonable expectation that the bill might be challenged on Constitutional grounds. The important thing is to prevent the Supreme Court decisions from being made based on who they impact in Congress.

The strategy I have outlined should make Congress hesitant about pushing the envelope where Constitutional rights are concerned, but also allow them to pass laws related to solidly established doctrine without concern that that doctrine might be overturned to their detriment.

Friday says:

Re: oath

“…representatives take an oath of office to protect the constitution…”

the oath is to protect AND DEFEND the constitution from enemies both foreign and domestic…

While breaking their oath is clear and evident to us and apparently required to be in public office today, it is not treason. What could be included in the constitution is a clear way to deal with breaking the oath, like a life-time restraining order from any form of government (including PTA and fraternal groups–because I’m feeling especially mean and spiteful toward oath breakers of this ilk), lobbying firms or groups and disbarment (if oath breaker is an attorney).

Carrie says:

Thank God for separation of powers

One thing I learned in law school is that the only thing stronger than the political party divide in America is the constitutional separation of powers divide. So whatever you may think about activist, political judiciaries, I will assure you of one thing: JUDGES DO NOT LIKE TO BE LIED TO. Especially not by their “co-equal” branches of government.

Even though the original case was 5-4 on standing, I’ll officially wager that the first case to reach the Supreme Court on the 4th Amendment merits of NSA Surveillance will be 9-0 against the intelligence community.

I’ll further wager that the majority opinion will be filled with glorious language like “A constitutional democracy cannot function if the government itself willfully lies to the judiciary in order to prolong their unconstitutional abuses; such behavior is but one step removed from despotism.”

Anonymous Coward says:

Re: Thank God for separation of powers

ha ha ha hahaaaa!!!!!

Really? Have you NOT been paying any attention?

Court, Judges, politicians, prosecution, & defense are all lying every freaking chance they get. Court is so full of lies which is why we hold session just to WADE THROUGH IT ALL!

The only travesty is that there is no law against lying by government officials being enforced because when you get down to it, the parties are in bed together but managing to fool the sheeple they are not.

Carrie says:

Re: Re: Thank God for separation of powers

But no ARTICLE III judge has yet to address the merits, just the secret FISA court ones. The Article III judges (i.e. DC Circuit Court of Appeals, Supreme Court) are going to be FURIOUS.

I’ll agree that a lot of Congressmen are every bit as condemned in this as the executive branch itself. But as Snowden’s leaks have brought these stories to light, more and more Congressmen are agitating for change, as covered extensively by Techdirt. So there’s some powerful Congress vs. Executive Branch dynamics at play here, too.

James Burkhardt (profile) says:

Re: Re: Thank God for separation of powers

Let me set this straight AC, Lying to Congress =/= lying to the SCOTUS. FISA Judges are in bed with the Intelligence community because all they hear is the smoke getting blown up their ass by Intelligence community Lawyers. Same way with patent Judges. But the Supreme Court is not inside that bubble. Its why the Intelligence community (INTCOM) made sure the merits of the law were never debated in the Supreme Court, only “standing”.

Why do you think the Lawyer is screaming about how he was lied to when he went before the SCOTUS? Because Verrilli is in deep shit the next time this gets in front of the SCOTUS. He’s tossing the INTCOM under the bus to save his own ass. Lying to congress has been shown to only be dangerous if the the popular narrative wants it to be dangerous (i.e. Bill Clinton). Lying directly to the courts? Far more often dangerous on its own merits.

Anonymous Coward says:

This bring up nothing really new. What I mean is this whole mess over the NSA and what is does has been thoroughly covered up with lying and misdirection by everyone involved with the exceptions of Wyden and Udall.

I again bring to the forefront that the whole legality is questionable. Mainly just because it is stated they can or can not do something does not make it legal. Going through the courts is the test that makes it legal or not. As we have already found out, what the FISA court says should be legal and what the NSA reports to have been violations or what it has done is not always what the court really hears.

No one supporting the NSA at this point, be it an agent, a politician, nor a judge can be believed. The whole source of this mess goes right to the top of the White House. You have only to look at the actions taken on whistle blowers to see it.

Proclaimed transparency that doesn’t exist, no penalties for official leaks, and just as many charges as can be piled on for those leaks outside of official channels.

TheLastCzarnian (profile) says:


Diane Feinstein was also one of the loudest voices for gun control. She has advocated a complete gun ban. (Nice way to uphold the Constitution, huh?)

Add in her advocation of total military populace surveilance and the increasing over-reach of Attourneys General, along with an ever-increasing police state and reduction in civil liberties, and a cynical person might think there was a conspiracy to turn the US into a industrio-military-led oligarcy which ruled it’s populace by fear and force.

Of course, I’m certain nothing could be farther from the truth…

jorge de zamacona (profile) says:

fienstein obstructing debate

What kind of democracy is this where one arrogant moron can forbid debate on issues that affect every American. When you violate the constitution you brake the law thus you are a criminal and as such you should be prosecuted, when senators and government officials take the oath of office they promise to uphold and defend the constitution of the United States if they do not they are betraying their oath and the trust of the people; betrayal equals treason thus impeachment is the next course of action.

FM Hilton (profile) says:

Sorry, no cigar

The truth of the matter is that no matter what the ACLU does, or what happened in the intervening years, the Supreme Court almost never, ever revisits their own case decisions.

They never do so, and they will never agree to do so.

Stop wishing for the impossible. It just won’t happen.

The FAA will be allowed to continue, the ACLU will be not allowed to have standing, and the NSA can do anything it wants.

That’s the real world in action for you. Not a pretty picture, and very depressing.

Come back in about 20 years when most of the present court is dead and buried, then we’ll see the case reopened and revisited.

But right now, it’s still law, and will remain so.

Uriel-238 (profile) says:

Re: Sorry, no cigar

If you are right, and SCOTUS will not revisit its own case decisions, even when the opinions given were based on false information that exhausts what can be done within the system.

And this means that under the circumstances, the current system of law is so heinous as to require the continuation of activism by any other means.

I cannot imagine that the people of the US are going to tolerate 20 years of unregulated surveillance from it’s government. I know the rest of the national community certainly will not, even if that means circumventing the entire internet around the US.

Carrie says:

Re: Sorry, no cigar

I don’t think you’re quite understanding some of the nuance of the issue here.

If you’re arguing that the Supreme Court won’t reopen the specific “standing” decision they made regarding the FAA — you’re almost definitely right on that.

But if someone with standing comes to the court, then the Supreme Court will address the merits. There are multiple cases currently pending where parties clearly have standing. Most notably, the ACLU-as-Verizon-Customer case file within days of Snowden’s first leak.

Merits issues vs. standing issues are entirely different questions. The Supreme Court has sidestepped issues on standing, only to be forced to address the merits in a new case a few years later, more times than I can count. (It’s been a particularly popular tactic in First Amendment cases). The Supreme Court (or at least, a variety of appellate courts) are going to be forced to address the 4th Amendment merits on this one.

And to those who think this won’t reach the court, citing the statistics of certiorari grants, those are pretty misleading in this case. The cases the Court is most likely to take are (a) cases of major national political importance, and (b) cases where a Circuit split develops. This is easily a “case of major national importance.” Remember: The DOMA/Prop 8 cases sailed to the top of the court’s docket last year, even though they were “young” disputes under traditional court-watching criteria.

Postulator (profile) says:

Where are the prosecutions? The resignations? The calls for a complete, open and (importantly) totally arms-length inquiry? Why are heads of departments not resigning/being sacked?

This whole episode is very ugly, and getting uglier by the day. Thank you for your bravery and honesty, Mr Snowden. Your country should be calling you a hero, and instead it continues to persecute you while protecting so many others.

FM HIlton (profile) says:


The main reason the Court does not ever revisit their own decisions is simple-they don’t want to second-guess themselves, or appear to be weak, or have seemed to made a mistake in their legal judgements. They’re always right, don’t you know.

That they could be wrong is another matter, and that’s not in their world view. Of course they’re right all the time-they’re the Supreme Court, and they’re supposed to be the final arbiter of all legal decisions regarding the Constitution and all related laws.

Unless someone comes forward with a brand new case with new evidence on another legal question, which is not directly related to the present case-that’s what will bring a new ruling, if they take the case-which they do have option to do: refuse or decline to hear it.

It’s a very hard-line process to get a case accepted into the court, and it has to have an entirely new focus for them to take the time to even look at it. Needless to say, those are high enough hurdles to discourage most from attempting it.

There are hundreds of petitions sent to the court every year, and they only hear at most a few dozen. If the government presents a case, though, that’s one they always hear. The rest of us have to wait in line for justice, which is sometimes never granted.

Real world justice doesn’t exist.

I call Shenanigans!!! says:

What a load of crap

Um, the Supreme Court totally DOES overturn its own prior decisions!!!

Bowers v. Hardwick (478 U.S. 186) was decided in 1986 and was then overturned in 2003 by Lawrence v. Texas (539 U.S. 558).

Pace v. Alabama was decided in 1883 and overturned by Loving v. Virginia in 1967.

1949’s Wolf v. Colorado decision was overturned 12 years later by 1961’s Mapp v. Ohio decision.

That’s just 3 examples; there are many, MANY more.

Uriel-238 (profile) says:

From the internet's perspective it's entirely moot.

At this moment we know that governments are capable of this magnitude of surveillance effort, they’re not going to stop based on legalities.

No matter how this turns out legally for the United States, the NSA (and, for that matter, regarding the still-unresolved Mega-upload debacle), we need to get our internet communications so it is still expensive for the government to listen in on private or commercial communications.

Because other interests will emerge, and they will be more clever about it and do it more cheaply and more quietly, and whether they leak their information to our nations justice departments, blackmail us or advertise us we’ll be at their mercy until we make it impossible for them to do it en mass.

As of this posting I have not received a US National Security Letter or any classified gag order from an agent of the United States
Encrypted with Morbius-Cochrane Perfect Steganographic Codec 1.2.001
Saturday, October 19, 2013 11:22:20 AM
basin corpse vase exam sardine shelf test hammer

TimK (profile) says:

I’m confused….

So, either there were 100 arrests and 9 cases based on information obtained through warrantless wiretaps, which was not presented to the defendants, therefore the DOJ lied to the Supreme Court about the FAA to avoid any chance of it being declared unconstitutional.


There were no arrests and no prosecutions based on the FAA’s warrantless wiretap programs.

Would the government please pick one so we know which way to go? Either you did “A” and we now have what we need for the SCOTUS to declare it illegal and end the program. Or it was “B” and proves that the FAA’s warrantless wiretapping has been utterly worthless and needs to be ended.

Either one works, just let us know which one it is…

Thebes says:

Don't worry...

Our current system is so bloated and unsustainable that it is likely our government will collapse on it’s own before the Political Class begins to purge the general public of “undesirables”.
Then we will have a brief revolution.
Then we get to HANG traitors like Feinstain.
(having first provided a fair trail without any waterboarding during interrogation)

desertspeaks says:

unconstitutional laws are null and void!

18 USC ? 241 – Conspiracy against rights
18 USC ? 242 – Deprivation of rights under color of law
42 USC ? 1983 – Civil action for deprivation of rights
18 USC ? 4 – Misprision of felony
18 USC ? 1622 – Subornation of perjury

“Where rights secured by the Constitution are involved, there can be no rule making or legislation which would abrogate them.” – Miranda v. Arizona, 384 U.S. 436, 491.

“Anyone entering into an arrangement with the government takes the risk of having accurately ascertained that he who purports to act for the government stays within the bounds of his authority, even though the agent himself may be unaware of limitations upon his authority.” The United States Supreme Court, Federal Crop Ins. Corp, v. Merrill, 332 US 380-388 L1947)

“State officers may be held personally liable for damages based upon actions taken in their official capacities.” Hafer v. Melo, 502 U.S. 21 (1991).

“Thus, the particular phraseology of the constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the Constitution is void;” and the courts, as well as other departments, are bound by that instrument.” Marbury v Madison, 5 US 1803 (2 Cranch) 137, 170?180, and NORTON v. SHELBY COUNTY, 118 U.S. 425.

“When an act of the legislature is repugnant or contrary to the constitution, it is, ipso facto, void.” 2 Pet. R. 522; 12 Wheat. 270; 3 Dall. 286; 4 Dall. 18.

“[p]owers not granted (to any government) are prohibited.” United States v. Butler, 297 U.S 1, 68 (1936).

“…all laws which are repugnant to the Constitution are null and void’ (Marbury v Madison, 5 US 1803 (2 Cranch) 137, 174, 170).

“Insofar as a statute runs counter to the fundamental law of the land, (constitution) it is superseded thereby.” (16 Am Jur 2d 177, Late Am Jur 2d. 256)

?A fact which constitutes an essential element of a cause of action cannot be left to inference.?
Roberts v. Roberts, 81 C.A.2d 871, 185 P.2d 381

?Matters of substance must be presented by direct averment and not by way of recital.?
Stefani v. Southern Pacific Co. (1932), 119 C.A. 69, 5 P.2d 946

in Eisner v. Macomber, 252 U.S. 189 (1920), to wit:
Congress … cannot by legislation alter the Constitution, from which alone it derives its power to legislate, and within whose limitations alone that power can be lawfully exercised.

U.S. v Mersky (1960) 361 U.S. 431 a statute that regulates without constitutional authority is a nullity even though it be published in the books, recognized by the police and lowers courts, and even though it be unchallenged for decades.

Rost v. Municipal Court of Southern Judicial District of San Mateo (1960) The Legislature, either by amending or otherwise, may not nullify a constitutional provision

A fair trial in a fair tribunal is a basic requirement of due process.? People v. Hawkins, 181 Ill.2d 41, 50, 228 Ill.Dec. 924, 690 N.E.2d 999 (1998) (citing Bracy, 520 U.S. 899, 117 S.Ct. 1793). ?Fairness at trial requires not only the absence of actual bias but also the absence of the probability of bias.? **971 *1001 Hawkins, 181 Ill.2d at 50, 228 Ill.Dec. 924, 690 N.E.2d 999 (citing In re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 99 L.Ed. 942 (1955)). ?To this end, no person is permitted to judge cases in which he or she has an interest in the outcome.? Hawkins, 181 Ill.2d at 50, 228 Ill.Dec. 924, 690 N.E.2d 999. ? ?Every procedure which would offer a possible temptation to the average man as a judge to forget the burden of proof required to convict the defendant, or which might lead him not to hold the balance nice, clear and true between the state and the accused denies the latter due process of law.? ? Hawkins, 181 Ill.2d at 51, 228 Ill.Dec. 924, 690 N.E.2d 999 (quotingTumey v. Ohio, 273 U.S. 510, 532, 47 S.Ct. 437, 71 L.Ed. 749

Invoking the FRUIT OF THE POISONED TREE DOCTRINE The government cannot break the law to enforce the law!
the doctrine that evidence discovered due to information found through illegal search or other unconstitutional means (such as a forced confession), may not be introduced by a prosecutor. The theory is that the tree (original illegal evidence) is poisoned and thus taints what grows from it
An extension of the exclusionary rule established in Silverthorne Lumber Co. v. United States, 251 U.S. 385 (1920). This doctrine holds that evidence gathered with the assistance of illegally obtained information must be excluded from trial.

Brookfield Construction Co. v. Stewart, 284 F.Supp 94: “An officer who acts in violation of the Constitution ceases to represent the government.”

DeSoto Securities Co. v. Commissioner, 235 F.2d 409, 411 (7th Cir. 1956)”It is a basic principle of statutory construction that courts have no right first to determine the legislative intent of a statute and then, under the guise of its interpretation, proceed to either add words to or eliminate other words from the statute’s language.

18 USC ? 1001 – Statements or entries generally
(a) Except as otherwise provided in this section, whoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully?
(1) falsifies, conceals, or covers up by any trick, scheme, or device a material fact;
(2) makes any materially false, fictitious, or fraudulent statement or representation; or
(3) makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry;
shall be fined under this title, imprisoned not more than 5 years or, if the offense involves international or domestic terrorism (as defined in section 2331), imprisoned not more than 8 years, or both. If the matter relates to an offense under chapter 109A, 109B, 110, or 117, or section 1591, then the term of imprisonment imposed under this section shall be not more than 8 years.
(b) Subsection (a) does not apply to a party to a judicial proceeding, or that party?s counsel, for statements, representations, writings or documents submitted by such party or counsel to a judge or magistrate in that proceeding.
(c) With respect to any matter within the jurisdiction of the legislative branch, subsection (a) shall apply only to?
(1) administrative matters, including a claim for payment, a matter related to the procurement of property or services, personnel or employment practices, or support services, or a document required by law, rule, or regulation to be submitted to the Congress or any office or officer within the legislative branch; or
(2) any investigation or review, conducted pursuant to the authority of any committee, subcommittee, commission or office of the Congress, consistent with applicable rules of the House or Senate.

15 USC ? 1122 – Liability of United States and States, and instrumentalities and officials thereof
(a) Waiver of sovereign immunity by the United States
The United States, all agencies and instrumentalities thereof, and all individuals, firms, corporations, other persons acting for the United States and with the authorization and consent of the United States, shall not be immune from suit in Federal or State court by any person, including any governmental or nongovernmental entity, for any violation under this chapter.
(b) Waiver of sovereign immunity by States
Any State, instrumentality of a State or any officer or employee of a State or instrumentality of a State acting in his or her official capacity, shall not be immune, under the eleventh amendment of the Constitution of the United States or under any other doctrine of sovereign immunity, from suit in Federal court by any person, including any governmental or nongovernmental entity for any violation under this chapter.
(c) Remedies
In a suit described in subsection (a) or (b) of this section for a violation described therein, remedies (including remedies both at law and in equity) are available for the violation to the same extent as such remedies are available for such a violation in a suit against any person other than the United States or any agency or instrumentality thereof, or any individual, firm, corporation, or other person acting for the United States and with authorization and consent of the United States, or a State, instrumentality of a State, or officer or employee of a State or instrumentality of a State acting in his or her official capacity. Such remedies include injunctive relief under section 1116 of this title, actual damages, profits, costs and attorney?s fees under section 1117 of this title, destruction of infringing articles under section 1118 of this title, the remedies provided for under sections 1114, 1119, 1120, 1124 and 1125 of this title, and for any other remedies provided under this chapter.

“The general rule is that an unconstitutional statute, though having the form and name of law, is in reality no law, but is wholly void and ineffective for any purpose, since its unconstitutionality dates from the time of its enactment… In legal contemplation, it is as inoperative as if it had never been passed… Since an unconstitutional law is void, the general principles follow that it imposes no duties, confers no right, creates no office, bestows no power or authority on anyone, affords no protection and justifies no acts performed under it… A void act cannot be legally consistent with a valid one. An unconstitutional law cannot operate to supersede any existing law. Indeed insofar as a statute runs counter to the fundamental law of the land, (the Constitution JTM) it is superseded thereby. No one is bound to obey an unconstitutional law and no courts are bound to enforce it.” Bonnett v. Vallier, 116 N.W. 885, 136 Wis. 193 (1908); NORTON v. SHELBY COUNTY, 118 U.S. 425 (1886). See also Bonnett v Vallier, 136 Wis 193, 200; 116 NW 885, 887 (1908); State ex rel Ballard v Goodland, 159 Wis 393, 395; 150 NW 488, 489 (1915); State ex rel Kleist v Donald, 164 Wis 545, 552-553; 160 NW 1067, 1070 (1917); State ex rel Martin v Zimmerman, 233 Wis 16, 21; 288 NW 454, 457 (1939); State ex rel Commissioners of Public Lands v Anderson, 56 Wis 2d 666, 672; 203 NW2d 84, 87 (1973); and Butzlaffer v Van Der Geest & Sons, Inc, Wis, 115 Wis 2d 539; 340 NW2d 742, 744-745 (1983).

Add Your Comment

Your email address will not be published. Required fields are marked *

Have a Techdirt Account? Sign in now. Want one? Register here

Comment Options:

Make this the or (get credits or sign in to see balance) what's this?

What's this?

Techdirt community members with Techdirt Credits can spotlight a comment as either the "First Word" or "Last Word" on a particular comment thread. Credits can be purchased at the Techdirt Insider Shop »

Follow Techdirt

Techdirt Daily Newsletter

Techdirt Deals
Techdirt Insider Discord
The latest chatter on the Techdirt Insider Discord channel...