nice to meet you

Posted by: cheap wow gold at April 14, 2008 01:25 AM

Sorry, Congress cannot change the law in pending cases at will. There is an elaborate web of rulings involving the contracts clause, prohibition on ex post facto laws, and limitation on bills of attainder that, more often than not forbids it. There are exceptions to these rules, but they are exceptions.

Posted by: ohwilleke at July 24, 2006 03:20 PM

This is good news. I want AT&T to pay ALL of it's customers retribution in the form of free long distance and caller ID for life and a 25% phone bill decrease for the next 5 years.

Posted by: jtw at July 22, 2006 07:57 PM

OS: I think it was written by law clerks, that is my opinion based on my experience. My opinion about lengthy opinions is the same.

Consant: It is perfectly legal for Congress to "interfere" with ongoing lawsuits by passing new laws. This happens all the time. When it happens intentionally, a court is said to have been "legislatively overruled" and anyone who thinks this is somehow unconstitutional is utterly ignorant of the relationship between lawmakers and judges in the US.

Generally: For those interested in airtight analysis of the legality of the NSA program, powerlineblog.com, written by excellent, intelligent attorneys, has already posted exhaustively on the subject. Given the analysis they have posted, which I have checked myself by reading the cases, such as Truong and In re sealed, it is ludicrous for anyone to rationally believe, based on what we know now of the NSA program, that it is an "illegal" program.

The analysis is too exhaustive and complicated to go into here. The people claming that the NSA program is illegal advance many arguments, all of which powerline writers shoot down at length, and it doesnt take them 72 pages to do it either.

Posted by: Kaltes at July 22, 2006 05:39 PM

There's a comment at Jurist, the link under my name: Kw = [ 274 F. Supp. 2d 20 ].

Short version: It's not Constitutional for the Congress to pass legislation that will target this ongoing litigation, yet the Court appears to have opened the door to that possibility.

Details: [ http://tinyurl.com/ho4qe ]

Posted by: Consant at July 21, 2006 03:14 PM

Hi Kaltes: given what you know of courts...doesn't mean it was necessarily written by law clerks. And, anyway,how do you know it's not a hoax doc?
Are you a judge perchance?
If you're not - despite the *implication* you're a lawyer - then how do you know for a fact that judges only write lengthy docs when they're wrong?
There must be instances where length's required and which has no bearing on the quality.
Anyway, my advice to Americans is to go shopping for a wig - not a collective one obviously - and electric blue binoculars and spy right back.
Have a nice day!
ps OK I believe you you're a lawyer

Posted by: OS at July 21, 2006 11:34 AM

I am most certainly a liberal, and seeing as how I am affiliated with a political party, I guess that makes me a partisan liberal. (And, I'm an American, by the way.)

Why is the NSA spying program illegal? Because the foreign intelligence surveillance act (FISA) requires warrants from a secret court to do them, even when foreigners are involved, and the administration has publicly stated that it has tapped phones in the absence of FISA warrants in situations when FISA requies them, allegedly in furtherance of the inherent authority of the Presidency under Article II of the Constitution.

This would be great, except for the case that Hamdan has held, based on prior precedent like the Youngstown case, that the President doesn't have inherent authority under Article II to override an act of Congress, even for national security purposes, at the very least, in the absence of an immediate emergency (as opposed to mere general investigation in search of terrorists).

Also, there have been credible allegations from sources like leaks from the NSA to sources like the Washington Post, New York Times and Congress that the NSA has not, as the administration claims, limited its warrantless wiretapping to foreigners, and have instead tapped American's phones without warrants. This has been clearly illegal since, at least, the Nixon administration.

And, it is pretty much undisputed that the NSA has made wholesale downloads of the complete billing records of long distance phone companies for all customers, contrary to privacy laws, without obtaining the court approvals or intelligence agency certifications required by law to do that. The last program is the focus of the suit against AT&T that the judge ruled on. The claim in that case is, primarily, that while there are legal ways to get those records if you need them, that the administration didn't use those legal methods, and that AT&T broke privacy laws when it made disclosures without going through the proper channels.

This may seem like a fairly minor claim, and it isn't the single most important civil liberties abuse in U.S. history by a long shot. But, those procedures place real limits abuses of domestic intelligence (e.g. using it for political gain instead of national security), and if someone doesn't stand up to enforce them, those limits are gone.

Posted by: ohwilleke at July 21, 2006 08:25 AM

"Why do Americans always react this extreme to anything?"

How do you know these folks are from the States?

Posted by: max at July 21, 2006 05:04 AM

Oempfff,

Why do Americans always react this extreme to anything? Somehow discussions always end here with people throwing words like "partisan liberal commie fascist goat fucking terrorist" at each other, when the subject is something like the pro's and con's of a new army boot.

Erik

PS: oh damn I am Dutch, so I am a liberal commie myself.

Posted by: Erik de Bruin at July 21, 2006 02:13 AM

Well ohwilleke, I see from your blog that you are an extremely partisan liberal, which explains why your reasoning is so shoddy.

Fact is you really are convinced the program is illegal even though you don't know anything about the details of the program.

Of course, no one can reason you out of a position that you clearly weren't reasoned into in the first place. I have confidence that common sense and reason will rule the day in eventually defeating this lawsuit, so long as it is kept away from judges who share your irrational biases. This is yet another reason why conservatives need to be, and have been, fighting to get conservative judges and justices confirmed.

Posted by: Kaltes at July 21, 2006 12:54 AM

The central holding of the case is that you can't claim state secrets privilege if people in a position to know, including the President and the Attorney General, have already blabbered about its existence all over the place.

It also holds that different standards apply when the person bringing the suit is voluntarily part of the group keeping the secret, than when a member of the general public who didn't agree to anything is involved.

The administration has put itself up against the wall by admitting publicly to a program that doesn't have a solid legal justification, and indeed, that defies existsing statutes. While the trial court doesn't mention Hamdan, that case looms over this one and it is no coincidence that this decision follows Hamdan. Hamdan stands for the principle that the President isn't allowed to break the law, even though he may get some slack when it is silent, even when national security is at stake. The existence of FISA, and a whole bunch of other laws relating to wiretapping, takes this case out of the realm of cases where Congress has been silent.

If the President had wanted to avoid this situation, he should have kept his mouth shut, instead of flaunting his defiance of Congressionally passed statutes.

Posted by: ohwilleke at July 20, 2006 08:48 PM

The NSA and the Feds are a bunch of Pussy government workers who could have stopped 9-11! They monitor Americans and the Playboy channel, when they should be looking for the Terror Boys! Ouch, my taxes hard at work!

Posted by: Jaye at July 20, 2006 06:03 PM

The case doesn't necessarily get decided "on the merits", there is something called an appeal, you know. I would hope that when you have 55 courts going one way and 5 going the other, the government attorneys would appeal this, and the 9th Cir. would hear them out, though anyone who knows the 9th Cir. knows that is the luck of the draw.

Judges write 72 page decisions when they know they are wrong. That has been my experience. When the law is on your side, you don't need to be verbose. You write 72 pages when you feel you need to convince somebody or something, and/or when you don't have a compelling argument so you instead take on the shotgun approach.

Given what I know of courts, especially when you're talking 72 pages, it means the law clerks wrote this, which probably means the reasoning is all the more shoddy.

And, by the way, a district court judge can't tell the country what the President's Constitutional authority is, only the US Supreme Court does that, and for good reason. This is just one step in a much larger process.

Also, as a fyi for the non-lawyers out there. This was a motion to dismiss. The very first step to kill a lawsuit. It is generally difficult to get cases thrown out at that stage unless they are truly devoid of merit. The court quote in the underlying article:

"And as in Halkin v Helms, it is certainly possible that AT&T might be entitled to summary judgment at some point if the court finds that the state secrets privilege blocks certain items of evidence that are essential to plaintiffs' prima facie case or AT&T's defense."

...means that this is not something at all guaranteed to go to the "merits". It still has to survive summary judgment. Actually, though, it should not have been allowed to get that far, because now the real fights are going to be over discovery.

The EFF will play the "lets do our best to trash US security in the name of privacy" game, and the US government will oppose them, and we might have this same court then trying to compel the government to hand over classified information to the EFF, yeah right.

There will be many more chances to appeal, and anyone who thinks that a court has no choice but to rule the NSA program illegal is delusional. These people spouting off dont even really know about the program because it is still classified, and it will remain that way. All you see now is speculation from liberals, and hearsay coming from leakers with dubious motives and credibility.

Posted by: Kaltes at July 20, 2006 04:00 PM