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Justice Defends Wiretaps, Invokes State Secrets (Again):

From the San Francisco Chronicle:

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."

As Glenn Greenwald notes here, the Justice Department also asserted a broad claim of sovereign immunity in seeking to dismiss the suit.

MJN1957:
TO those that voted for him...You wanted him, you got him, you own him...
4.7.2009 9:40am
Richard Aubrey (mail):
No,no, MJ.

It's all good. It's good. There's no problem. It's okay.
We no longer have a Texas cowboy moron in the White House, so it's all good.
Look at all the Obama supporters smiling away so happily.
4.7.2009 9:49am
Joe T Guest:
Where have I heard this song before? Oh yeah, that's right:


The change, it had to come
We knew it all along
We were liberated from the fold, thats all
And the world it looks the same
And history ain't changed
cause the banners, they were all flown in the last war

Ill tip my hat to the new constitution
Take a bow for the new revolution
Smile and grin at the change all around me
Pick up my guitar and play
Just like yesterday
Then Ill get on my knees and pray
We dont get fooled again... oh no no.

Theres nothing in the streets
Looks any different to me
And the slogans are replaced, by-the-bye
And the parting on the left
Are now parting on the right
And the beards have all grown longer overnight


Speaking of the beards, shouldn't the parting on the left be showing up soon to defend this action as perfectly reasonable?
4.7.2009 9:59am
cboldt (mail):
The notion of a soverign immunity claim vs. a statutory claim to a right to sue and damages is interesting in its own right. This could be a real cost savings for the government (and the taxpayer), if played out fully. No more 1983 actions?
4.7.2009 10:07am
Cornellian (mail):
Look at all the Obama supporters smiling away so happily.

Like Glenn Greenwald, who says this (at Salon.com)?

It is simply inexcusable for those who spent the last several years screaming when the Bush administration did exactly this to remain silent now or, worse, to search for excuses to justify this behavior.
4.7.2009 10:22am
wfjag:

No more 1983 actions?

42 USC 1983 doesn't lie against the US, and it would take very unusual facts to apply it to a US official. It's an action against private persons who engage in "state action" to deny constitutionally protected rights.

It is well-established, despite Greenwald's hysteria, that absent a clear, unambiguous waiver of soverign immunity, the US (its agencies and officials acting within scope of employment) have no liability for damages. The Federal Tort Claims Act is one of the more commonly used waivers for certain tort actions (generally, those founded on negligence). See 28 USC 1346(b) &2671-2680. What I don't understand about the EEF suit is why the Telcom Cos. aren't "volunteers" within the definition of "employee[s] of the government" in 28 USC 2671, so that any damages action would have to proceed solely against the US. I can understand why EEF doesn't want to follow the FTCA, since the only remedy is damages -- which precludes equitable relief.

Although I'm sure it can be alleged that a Bivens action can be brought. However, the fed courts, and especially the SCOTUS has been very reluctant to expand the Bivens action beyond its original facts, and most courts hold that if the FTCA applies, no Bivens action lies.

Still, as to the "state secrets" doctrine -- it looks like "the more things change, the more things stay the same." Maybe that's why Greenwald is hysterical.
4.7.2009 10:31am
cboldt (mail):
-- It is well-established, despite Greenwald's hysteria, that absent a clear, unambiguous waiver of soverign immunity, the US (its agencies and officials acting within scope of employment) have no liability for damages. --
.
My "no more 1983 actions" was meant to be tongue in cheek, and probably should have said "1981 actions" instead. As for the instant case, (which I've skimmed, but probably won't take the time to read carefully), I had FISA's civil damages remedy of 50 USC 1810 in mind. Seems that remedy is toothless, a point I have mode in the past. The presence of that statutory provision is merely "feel good" pabulum, intended to fool the public.
4.7.2009 10:40am
ArthurKirkland:
I hope the new administration does not intend to engage in the blanket surveillance-and-secrecy approach that marked its predecessor. If it does, it should be viewed with more opprobrium than its predecessor, if only because President Obama knows better.

I doubt the Obama administration is or will be as bad -- in deed as well as legal position -- as the Bush (the lesser) administration, but the jury is still out.

I hope President Obama explains the situation soon.

It is not "all good" -- far from it -- and I am among the majority of Americans who are relieved that we have a new administration and optimistic concerning its ability to solve the problems.
4.7.2009 10:42am
ruuffles (mail) (www):

You wanted him, you got him, you own him...


Look at all the Obama supporters smiling away so happily.

It's quite silly to think that those who supported him expected him to follow the ACLU's positions line and verse. He can follow in Bush's footsteps on surveillance all he wants, but there is one significant difference. The judges Obama nominates to Circuit and Supreme Courts will be much more willing to go against him than Bush's nominees. Checks and balances anyone?

Obama will be gone in 4 or 8 years but his judges will be there for life.
4.7.2009 10:52am
PersonFromPorlock:
I've sometimes wondered (foolishly, I imagine) how 'sovereign immunity' applies when it's the People who are sovereign, not the government. But I don't suppose the courts are much bothered by petty inconsistencies if they make governing easier.
4.7.2009 10:53am
Joe T Guest:
It's quite silly to think that those who supported him expected him to follow the ACLU's positions line and verse.


I guess using the courts to develop national security policy is wiser than asking democratically accountable elected politicians to do it.
4.7.2009 11:02am
ruuffles (mail) (www):

I guess using the courts to develop national security policy is wiser than asking democratically accountable elected politicians to do it.

You're incorrect. The Courts are merely there to determine constitutionality.
4.7.2009 11:03am
Dan M.:
Sure, Greenwald is one supporter who is criticizing Obama, but he's principled, even if he's hysterical at times. If anyone on Dailykos brings this up, 90% of the posters will defend Obama.

Greenwald was a frequent critic of those who blindly trusted anything Bush did because they trusted Bush and trusted his motives even if the things he did were suspect. He also notes that the same thing is happening with Obama.
4.7.2009 11:04am
ruuffles (mail) (www):
Here, does this modification help?

I guess using the courts to develop gun control policy is wiser than asking democratically accountable elected politicians to do it.
4.7.2009 11:05am
BenFranklin (mail):
Anyone who didn't know that the uproar against tapping conversations with foreign countries was just to get the right guy elected was just naive. Barney Frank is already throwing Code Pink out of his hearings now that they have served their purpose and the press will not make an issue of Obama going back on his rhetoric.

We are on the road to socialism and that is all that matters. And if we all have to give the government a copy of our medical records and let them decide what treatments we can receive then isn't that really just a small price to pay so that Europeans will think better of us?
4.7.2009 11:15am
Joe T Guest:

You're incorrect. The Courts are merely there to determine constitutionality.


Yeah, I guess you're right. The courts would never just make stuff up or dictate policy from the bench. Models of restraint, they merely decide whether the actions of the other federal branches pass Constitutional muster...

[Hahh haa haa haaa haa haa haaaah. Holy crap, that was funny Ruufles. My ribs hurt now.]
4.7.2009 11:20am
ruuffles (mail) (www):

Models of restraint, they merely decide whether the actions of the other federal branches pass Constitutional muster...

I'd have to assume then you disagree with Heller? Because last time I checked, the DC city, mayor, and Congress are all democratically elected.
4.7.2009 11:22am
wfjag:

I had FISA's civil damages remedy of 50 USC 1810 in mind. Seems that remedy is toothless, a point I have mode in the past. The presence of that statutory provision is merely "feel good" pabulum, intended to fool the public.

cboldt -- such cynicism. Alleging that our elected representatives would enact a remedy that provides no remedy as a spin-doctored response. "Oh, Joe. Tell me it ain't so."
4.7.2009 11:23am
PLR:
To those that voted for him...You wanted him, you got him, you own him...

And we will hold him accountable, unlike those who supported 43.
4.7.2009 11:27am
Kirk:
The judges Obama nominates to Circuit and Supreme Courts will be much more willing to go against him than Bush's nominees.
And you know this how, exactly?
4.7.2009 11:37am
Just an Observer:
Meanwhile, I remain interested to see what Judge Walker will do in the Al Haramain case, where Obama's DOJ contumaciously challenged his order after he ruled against the government on a state-secrets issue.
4.7.2009 11:43am
MJN1957:


And we will hold him accountable, unlike those who supported 43.



Umm...no, you won't...much more so that you will not, but also because you can not. You have served your purpose and you will be told to sit down and shut up, if you are even heard at all (which you won't be).

I suspect that you believe somehow that he is "better" than GWB simply because he reads a teleprompter better and he told you what you wanted to hear (mainly "I'm not Bush!").

Ignore the siren song and knock the stars out of your eyes so you can SEE what he is doing. Then let us know if that is what you REALLY wanted...
4.7.2009 11:44am
ruuffles (mail) (www):

because he reads

Needn't go further than that.
4.7.2009 11:46am
Bruce Hayden (mail):
Sorry to all of you who bemoan this, but from my point of view, this is one of the few adult things that the Obama Administration has done since entering office.

No, the Bush (43) Administration was not listening in to your telephone calls, even if you were calling overseas (and definitely not if you were calling w/i the U.S.) And neither is the Obama Administration.
4.7.2009 11:49am
ruuffles (mail) (www):

The judges Obama nominates to Circuit and Supreme Courts will be much more willing to go against him than Bush's nominees.

And you know this how, exactly?

Because the R nominees on the DC Circuit and Scotus were deferential to Bush, while Rogers, a Clinton nominee, voted against him, on the Gitmo cases.
4.7.2009 11:49am
ArthurKirkland:

I suspect that you believe somehow that he is "better" than GWB simply because he reads a teleprompter better and he told you what you wanted to hear (mainly "I'm not Bush!").


--


Theres nothing in the streets
Looks any different to me



Until President Obama invades the wrong country; botches an occupation; and tortures the innocent as well as anyone remotely considered a "terrorist;" and demonstrates an independent taste for secrecy and warrantless surveillance, I believe it is premature to rule out the prospect that he is what the country wanted (and needed).

If he is demonstrated to constitute no improvement, I hope he will be castigated, and I hope to be among the critics.
4.7.2009 11:59am
guest890:
This isn't really a surprise. As a Senator, Obama voted for telecom immunity last year (despite protests from some quarters). Did people really expect anything different?
4.7.2009 12:13pm
PC:
No, the Bush (43) Administration was not listening in to your telephone calls, even if you were calling overseas (and definitely not if you were calling w/i the U.S.) And neither is the Obama Administration.

But if any of your internet traffic is routed through an AT&T switch then they are data mining what you do.
4.7.2009 12:18pm
Bart (mail):
Why is the left surprised by this? No sane or competent President is a going to allow ACLU to abuse civil discovery to troll through and disclose to the enemy the means and methods of a top secret intelligence gathering program.
4.7.2009 12:47pm
Joe T Guest:
I'd have to assume then you disagree with Heller?


Okay, cool Ruffles. I see we've reached the Reductio ad Jackassium stage of this discussion. We're done.
4.7.2009 12:47pm
RPT (mail):
So far the only defense of the DOJ's position on this issue here has come from the R/Con side. Who is making the decisions on this and related cases; Holder, Bush holdovers, Cheney "stay-behinds"? Do any posters actually "know" what is going on or is this just content-free sniping like the first several posts.

Re the repeated extensive citation of song lyrics, please check what you must do under the copyright law. It would also be helpful to have some familiarity with the composer and his thoughts on his own words.
4.7.2009 1:23pm
Joe T Guest:
RPT - who would that be? You think I violated copyright in quoting the song lyrics? Perhaps you wrote the definitive book on interpreting Teh Musings of Daltry?

Hey wait a minute... are you one of those new Justice appointees from the record industry?
4.7.2009 3:06pm
BGates:
because he reads


Needn't go further than that.


Quite right. If you went all the way to the end of the sentence, you'd have to confront a criticism of Dear Leader.
4.7.2009 3:17pm
einhverfr (mail) (www):
Watch out. Pretty soon you, too, will be a leading apologist for executive lawlessness.
4.7.2009 3:27pm
einhverfr (mail) (www):
Change we can believe in. This time from the right lobbyists!

Donate your spare change to the EFF today :-)
4.7.2009 3:52pm
zuch (mail) (www):
wfjag:
I can understand why EEF doesn't want to follow the FTCA, since the only remedy is damages -- which precludes equitable relief.
50 USC § 1810 provides liquidated damages of $1K per day of violation (and this is perhaps per person) or actual damages, whichever is greater. For a dragnet snoop of millions of e-mails, this might be a fairly large sum.

Cheers,
4.7.2009 4:14pm
Tritium (mail):
In a Republican form of Government, the People are the Sovereign. Yet the Government claims it is the Sovereign, capable of acting on it's own free will. But that is not a republican form of Government, nor does our government practice the seperation of powers that was specifically put in place to protect the true Sovereign of this nation, the people. The tyranny of the rich wishing to protect themselves and the wealth they've been able to grow.

What's even more amazing, is the President used to teach constitutional law, and if you ask me, he would fail any real test on the subject. It's not what the government has asserted to be true, it's what has always been true. And subsequent laws cannot ignore the Supreme Law, the Highest possible laws of the land. Ignorance is bliss, and sadly the smartest of the bunch aren't so smart... else we wouldn't be in the position we're in.
4.7.2009 9:17pm
Xanthippas (mail) (www):

TO those that voted for him...You wanted him, you got him, you own him...


This despite the fact that the Obama administration is, at least in this respect, parroting arguments made by the Bush administration that were widely lauded by the right. It seems that since there exists a natural affinity between the right and these gross claims of executive authority, that perhaps you could do us the courtesy of at least "owning" your agreement with the Obama administration's legal claims.


Why is the left surprised by this? No sane or competent President is a going to allow ACLU to abuse civil discovery to troll through and disclose to the enemy the means and methods of a top secret intelligence gathering program.

In reading the recent Volokh post on comment policy, I read one comment by a person claiming to enjoy Volokh because of the commentary. I assume they were not referring to comments like this.
4.8.2009 12:31am
Richard Aubrey (mail):
Xanthippas.
What's your objection? Do you think Lynne Stewart or Ramsey Clark wouldn't act as described? Do you think their clones wouldn't flock to defend in trials if they had the opportunity to troll through for such information?
4.8.2009 10:59am
roystgnr (mail):
It's quite silly to think that those who supported him expected him to follow the ACLU's positions line and verse.

Is it silly to expect Obama to follow the positions he wrote on his own campaign website? Well, yes, actually, it is silly, and has been ever since he voted for the FISA bill containing a provision that he'd promised to filibuster. But even if it's silly to expect his positions to be followed with integrity, it's not silly to criticize his administration when that doesn't happen.

You have served your purpose and you will be told to sit down and shut up, if you are even heard at all (which you won't be).

This hits the nail on the head. Anyone expect a Democratic primary challenger in '08? How about a pro-bill-of-rights victory in the Republican primary? No? Fine, then, what's plan B?

No, the Bush (43) Administration was not listening in to your telephone calls, even if you were calling overseas (and definitely not if you were calling w/i the U.S.)

Little known fact: the actual reason why Ashcroft, Mueller, etc. threatened to resign in '04 is that Bush tried to tack an "I want to see that justice statue's boob again!" rider onto the end of his otherwise-perfectly-legal wiretapping program instructions.
4.8.2009 11:15am
wfjag:
zuch wrote:

wfjag:

I can understand why EEF doesn't want to follow the FTCA, since the only remedy is damages -- which precludes equitable relief.

50 USC §1810 provides liquidated damages of $1K per day of violation (and this is perhaps per person) or actual damages, whichever is greater. For a dragnet snoop of millions of e-mails, this might be a fairly large sum.

Cheers,


Dear Zuch:

While admitting that there is an argument (since no decisions hae intrepreted that statute yet), I suggest you do further research before concluding that 50 USC §1810 provides such a powerful remedy. As cboldt has correctly noted, when examined, the remedy is more eye-wash than substance. It helps to actually analyze the statute and not rely on a paraphrasing of it. It also helps to research similarly worded statutes.

50 USC §1810 provides the remedy of:

(a) actual damages, but not less than liquidated damages of $1,000 or $100 per day for each day of violation, whichever is greater;
(b) punitive damages; and
(c) reasonable attorney's fees and other investigation and litigation costs reasonably incurred.


No cases have interpreted it, so it is proper to look to other statutes Congress has enacted that contain similar language. The Privacy Act also provides for civil remedies, using similar language, at 5 USC§552a(g)(4):


In any suit brought under the provisions of subsection (g)(1)(C) or (D) of this section in which the court determines that the agency acted in a manner which was intentional or willful, the United States shall be liable to the individual in an amount equal to the sum of--
(A) actual damages sustained by the individual as a result of the refusal or failure, but in no case shall a person entitled to recovery receive less than the sum of $ 1,000; and
(B) the costs of the action together with reasonable attorney fees as determined by the court.


The courts have limited the apparent sweep of this language. To prove “actual damages” the plaintiff in a PA suit must prove that the violation had an adverse impact upon him. Wisdom v. Dept., HUD, 713 F.2d 422 (8th Cir. 1983), cert. den., 465 U.S. 1021 (1984); Cochran v. US, 770 F.2d 949 (11th Cir. 1985). Emotional trauma or emotional damages do not qualify as “actual damages” and there is no recovery therefor. Albright v. US, 235 U.S. App. D.C. 295, 732 F.2d 181 (D.C. Cir. 1984); McGinnis v. U.S. Air Force, 266 F. Supp. 2d 748, 779 (S. D. Ohio 2003); see also Meldrum v. United States Postal Serv., 2000 U.S. App. LEXIS 24058, 2000 WL 1477495 (6th Cir. Sept. 25, 2000) (plaintiff who alleged that he suffered stress, anxiety, and depression due to the improper maintenance and the improper disclosure of a file "failed to establish that he suffered any adverse effects for which he can recover under the Act.").

Accordingly, it looks like under 50 USC §1810 either plaintiffs will receive any out-of-pocket costs they can prove were caused by the violation, or, limited statutory damages. I stand by my original point, since it is based on more than a superficial reading of the law.

Cheers to you too!
4.8.2009 4:16pm
Tritium (mail):
So which is the Executive? The Republican Party? Democratic Party? Or is it an Individual not affiliated with either? And at what point did the legislature gain the power to judge what is justice and what is not? If Justice can be legislated, then there is really no need for a Judicial Branch.

I have an idea... Why don't we save money, get rid of the legislative and judicial branches, and put all three powers into one individual. Ignorance teaches us this is the best form of efficient government.
4.8.2009 7:38pm

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