Suit Goes Forward, at Least for Now

July 20, 2006 2:18 PM

Judge Refuses to Dismiss NSA Spy Program Lawsuit.Judge Walker has denied the motion by the government to dismiss the EFF's suit based on the state secrets doctrine. Read the order [pdf] and more coverage and analysis at SCOTUSblog.
posted by monju_bosatsu (36 comments total)

How can we get rid of this activist judge?
posted by interrobang at 2:21 PM on July 20, 2006

How can we get rid of this activist judge?

Maybe the Bush administration can plant evidence, spin some aspect of "bad behavior" or appeal to the Supreme Court:

"As Article III judges, federal district judges are appointed for life, and can be removed involuntarily only when they violate the standard of “good behavior”. The sole method of involuntary removal of a judge is through impeachment by the United States House of Representatives followed by a trial in the United States Senate, which requires a two-thirds vote to convict. Otherwise, a judge, even if he or she is convicted of a felony criminal offense by a jury, is entitled to hold office until he (or she) dies or retires. In the history of the United States, only twelve judges have been impeached by the House, and only seven have been removed following conviction in the Senate. (For a table that includes the twelve impeached judges, see Impeachment in the United States.)

"Generally, a final ruling by a district court in either a civil or a criminal case can be appealed to the United States court of appeals in the federal judicial circuit in which the district court is located, except that some district court rulings involving patents and certain other specialized matters must be appealed instead to the United States Court of Appeals for the Federal Circuit, and in a very few cases the appeal may be taken directly to the United States Supreme Court."
posted by Blazecock Pileon at 2:32 PM on July 20, 2006

Thank you, your Honor. Justice was done today.
posted by Malor at 2:37 PM on July 20, 2006

Hmm. NYTimes link requiring registration. Think I'll pass on that.
posted by kaemaril at 2:56 PM on July 20, 2006

That reminds me....time to renew my EFF membership!
posted by vacapinta at 2:59 PM on July 20, 2006

Good news, although the case has a long way to go, including an immediate appeal by the government and a potential transfer of the case to another district.
posted by brain_drain at 3:06 PM on July 20, 2006

kaemaril - you got someting to hide? Because if you have nothing to hide, then you have nothing to fear.
posted by Joe Invisible at 3:28 PM on July 20, 2006

kaemaril - bugmenot
posted by bob sarabia at 3:35 PM on July 20, 2006

Hmm. NYTimes link requiring registration. Think I'll pass on that.

Just go get bug me not.

http://roachfiend.com/archives/2005/02/07/bugmenot/

It logs you in using other accounts. Super handy.
posted by Mr_Zero at 3:43 PM on July 20, 2006

Wow. it took me over seven minutes to make that post
posted by Mr_Zero at 3:45 PM on July 20, 2006

Hmm. NYTimes link requiring registration. Think I'll pass on that.

Congratulations. Here, have a cookie.
posted by monju_bosatsu at 4:32 PM on July 20, 2006 [1 favorite has favorites]

*smile*
posted by Smedleyman at 4:37 PM on July 20, 2006

it's good news, but they'll never let it go to court--state secrets, and whatever it was they used to shut up Sibel Edmunds and others...
posted by amberglow at 4:38 PM on July 20, 2006

amberglow - it's good news, but they'll never let it go to court--state secretsit's good news, but they'll never let it go to court--state secrets

from the judge's order:

If the government’s public disclosures have been truthful, revealing whether AT&T has received a certification to assist in monitoring communication content should not reveal any new information that would assist a terrorist and adversely affect national security. And if the government has not been truthful, the state secrets privilege should not serve as a shield for its false public statements. [...]

"To defer to a blanket assertion of [state] secrecy here would be to abdicate that duty, particularly because the very subject matter of this litigation has been so publicly aired. The compromise between liberty and security remains a difficult one. But dismissing this case at the outset would sacrifice liberty for no apparent enhancement of security."
posted by pruner at 4:50 PM on July 20, 2006

amberglow: Who are "they"? If "they" are the executive branch, then they just took a major loss here, since the judge ruled the case can in fact "go to court" despite the executive's assertion of the state secrets doctrine. If "they" are the courts, I don't see the basis for your pessimism, since the trial judge rejected the motion to dismiss and the appellate courts out west tend to lean left.
posted by brain_drain at 4:54 PM on July 20, 2006

and if the witnesses are gagged?
posted by amberglow at 5:02 PM on July 20, 2006

I cannot believe you guys honestly think this will really end up in court--have you not been watching this administration and their Justice Dept. at all? Not to mention their buddies in Congress, who are working to make it all legal, retroactively, as i type this.
posted by amberglow at 5:06 PM on July 20, 2006

"and if the witnesses are gagged?"

And if ninja crocodiles eat all of our jujubees?
posted by klangklangston at 5:22 PM on July 20, 2006 [2 favorites has favorites]

amberglow

the judge refused the admin's claim of state secrets privilege...

but don't let that fact get in the way of your opinion.
posted by pruner at 5:24 PM on July 20, 2006

"And if ninja crocodiles eat all of our jujubees?"

I for one welcome our jujubee eating ninja crocodile overlords.
posted by jpf at 5:28 PM on July 20, 2006

Activist jujubees?
posted by homunculus at 5:47 PM on July 20, 2006

In amberglow's defense, while this particular decision may wind up having some limited life-span in open court, all future secret items like this will be locked up tight under FISA, and you can be sure that secret court will be filled to the brim with judges who drink the cool-aid by the gallon.

From the article:

In addition, Congress and the Bush Administration are currently discussing potential legislation that would move all of the challenges to the NSA spying program into the secret Foreign Intelligence Surveillance Court of Review. In addition, the federal court panel that holds the power to assign a number of related cases to a single U.S. District Court for at least some proceedings is to hold a hearing on July 27 in Chicago to decide whether to send many if not all of the pending cases to a District Court in Washington, D.C.

I'm no liberal, but I'm sick of secrets, cover ups and foreign policy screw ups. Can't we just kick everyone out of all three branches and start over?
posted by hrbrmstr at 6:36 PM on July 20, 2006

hrbrmstr ,

Its "kool-aid" as in "kkkool-aid"
posted by subaruwrx at 7:21 PM on July 20, 2006

Macabees?
posted by blue_beetle at 7:24 PM on July 20, 2006

watch and see.
posted by amberglow at 8:10 PM on July 20, 2006

from SCOTUSBLOG too: Analysis: The new roles for courts on NSA spying--...The Specter bill would send to the FIS Court of Review (not to the first-level FIS Court) "any case before any court challenging the legality of classified communications intelligence activity relating to a foreign threat," if the lawsuit challenges the legality of such electronic surveillance. Every such case would go to the Court of Review if, in each case, the Attorney General declares under oath that allowing the case to go forward in the regular court "would harm the national security of the united States." (It may be assumed that the Attorney General would do so in every such case, since the Justice Department already has sought to have every such pending case dismissed under the government's "state secrets privilege."

The Court of Review would have only three issues within its reach: did the individual or group that filed the challenge in a regular court have a right to sue ("standing"), was the challenged activity or program illegal or unconstitutional, and should the party that sued have any constitutional right -- if criminal charges are brought against it or him -- to see secret information gathered by the spying. Once it made those decisions, the Court of Review would send the case back to the originating court "for further proceedings consistent with" what the Court of Review had decided. Unless a Court of Review decision went on to the Supreme Court, it would be binding on all other courts (and presumably would be, too, if it survived Supreme Court review).

The Specter bill says nothing at all about the procedures the Court of Review would use. If that Court followed its existing procedures under present law, only the government would be involved; the lawyers for the party that filed the challenge would be excluded and they would have no right to file any pleadings. The proceedings would be secret, and the Court of Review would be free to decide not to publish its rulings. ...
posted by amberglow at 8:17 PM on July 20, 2006

Has anyone told Jack Cafferty what a pathetic worm Specter turned out to be? He'll be so disapointed.
posted by homunculus at 9:01 PM on July 20, 2006

In other legal news: Rep. John Conyers is suing President Bush over the enactment of the Federal Deficit Rediction Act.
posted by homunculus at 9:06 PM on July 20, 2006

DOJ issues clearances immediately for the NY Times-denies it for the NSA program
posted by homunculus at 9:16 PM on July 20, 2006

I'm glad to see this opinion.

While I agree with the cynicsrealists about the likelihood of this ultimately making much of a difference, I think there'll be plenty of time to get worked up about that when it comes down. I also think that the Admin has much less pull than it used to, they've trod on too many toes, and it's not really quite as foregone a conclusion as it once would have been that this ruling will have no bearing on the way the nation turns.
posted by OmieWise at 6:20 AM on July 21, 2006

NYTimes link requiring registration.

Thankfully. That way, I know when someone has linked to the NY Times, and I can avoid reading it.

Hint: The New York Times serves the exact same role as Joe Libermann.
posted by eriko at 10:21 AM on July 21, 2006

So GWB is the decider?
posted by nofundy at 12:43 PM on July 21, 2006

Defeating the Specter bill
posted by homunculus at 9:53 PM on July 21, 2006

from homunculus' link: ...Democrats have an opportunity to impose a serious defeat on the White House by taking a real stand against this truly destructive Specter bill. It is not difficult to make clear that opposition to the Specter bill is not an anti-eavesdropping position, but simply a desire to preserve the safeguards and checks and balances which our country has had for the last 25 years and with which all Presidents before the current one -- Republican and Democrat alike -- easily complied without complaint while defending the nation. ...

That's the problem--there have been no real stands taken these past few years.
posted by amberglow at 1:50 PM on July 22, 2006

and the DC Dems are terrified of being painted as weak on terror, which they will be if they fight this.
posted by amberglow at 2:22 PM on July 22, 2006

ABA Blasts the Specter NSA Bill
posted by homunculus at 5:24 PM on July 22, 2006