Obama administration tries to kill wiretapping lawsuit

[Dominus Atheos]

Wired

The Obama administration urged a federal judge on Friday to stay enforcement of a ruling favoring the plaintiffs in a lawsuit challenging President George W. Bush's warrantless eavesdropping program.

Justice Department special counsel Anthony Coppolino told U.S. District Judge Vaughn Walker during a 60-minute hearing here that the appellate courts should review his Jan. 5 decision allowing classified evidence into the case, a position the Obama administration took in court documents the day before.

Without the classified evidence, Coppolino said, the government wins the case by default, and two American lawyers who claimed they were unlawfully spied upon can't pursue their lawsuit.

"If we are right about this, the case gets dismissed," Coppolino said.

But Judge Walker said he wanted more briefing on the matter. He refused to immediately stay enforcement of his order, which requires the government to allow the plaintiffs' attorneys, and the court, to review a highly-classified document that purportedly shows that the lawyers for a now-defunct Saudi charity had their telephone conversations wiretapped without warrants n 2004.

The lawyers -- Wendell Belew and Asim Ghafoo - sued the Bush administration after the U.S. Treasury Department accidentally released the Top Secret memo to them, then successfully demanded its return. The memo was barred from the lawsuit through years of litigation, until Walker recently ordered the government to turn it over, after the plaintiffs successfully gathered unclassified evidence to support their case.

As it stands, lawyers for the plaintiffs are scheduled to view the document as early as Feb. 13.

The documents' use in the case is central for the two charity lawyers to acquire legal standing so they may challenge the constitutionality of Bush administration's warrantless-eavesdropping program.

Jon Eisenberg, the attorney for the two lawyers, suggested the litigation be put on hold to give the new Obama administration time to reconsider the legal posture it inherited from Bush.

"None of us knows whether or not they might take a different approach to this case," Eisenberg argued to Walker.

Neither Coppolino nor Walker responded to that point. Disputes with pretrial decisions generally require the trial judge to permit an appeal.

Walker noted that there were few grounds to allow an appeal partway through this case. But he said he would consider granting an appeal under a statute that allows judges to kick cases up to the appellate courts if a substantial question of law is at issue. In this case: can a document that the government has declared a state secret be allowed in a lawsuit?

"We believe that we have a successful privilege assertion in this case," said Coppolino, citing the "state secrets privilege", which, when invoked, generally results in a dismissal of lawsuits against the government.

Three years ago Walker allowed the government to appeal a decision in a different spy case under similar circumstances. The Electronic Frontier Foundation sued AT&T for allegedly being complicit in Bush's warrantless spy program.

In that case, too, the government asserted the state secrets privilege, saying the lawsuit should be dismissed because it threatens to harm national security.

The 9th U.S. Circuit Court of Appeals dismissed the appeal as moot last year after Congress, including then-senator Barack Obama, voted to immunize the nation's telecoms from the lawsuit. In a separate vote, Obama opposed immunity, but he finally endorsed it as part of broad legislation legalizing the once-secret warrantless spy program.

Last month, the EFF asked Walker to overturn the immunity legislation. A decision by Walker is pending in that matter.

On Friday, Walker instructed the government and Eisenberg to provide further written arguments within weeks about why he should or should not permit the government to appeal a case brought by two former lawyers for the Al-Haramain Islamic Foundation.

That was a followup to this:

The Obama administration fell in line with the Bush administration Thursday when it urged a federal judge to set aside a ruling in a closely watched spy case weighing whether a U.S. president may bypass Congress and establish a program of eavesdropping on Americans without warrants.

In a filing in San Francisco federal court, President Barack Obama adopted the same position as his predecessor. With just hours left in office, President George W. Bush late Monday asked U.S. District Judge Vaughn Walker to stay enforcement of an important Jan. 5 ruling admitting key evidence into the case.

Thursday's filing by the Obama administration marked the first time it officially lodged a court document in the lawsuit asking the courts to rule on the constitutionality of the Bush administration's warrantless-eavesdropping program. The former president approved the wiretaps in the aftermath of the Sept. 11, 2001, terror attacks.

"The Government's position remains that this case should be stayed," the Obama administration wrote (.pdf) in a filing that for the first time made clear the new president was on board with the Bush administration's reasoning in this case.

The government wants to appeal Walker's decision to the 9th U.S. Circuit Court of Appeals in San Francisco, a legal maneuver requiring Judge Walker's approval. A hearing in Walker's courtroom is set for Friday.

The legal brouhaha concerns Walker's decision to admit as evidence a classified document allegedly showing that two American lawyers for a now-defunct Saudi charity were electronically eavesdropped on without warrants by the Bush administration in 2004.

The lawyers — Wendell Belew and Asim Ghafoo — sued the Bush administration after the U.S. Treasury Department accidentally released the Top Secret memo to them. At one point, the courts had ordered the document, which has never been made public, returned and removed from the case.



The document's admission to the case is central for the two former lawyers of the Al-Haramain Islamic Foundation charity to acquire legal standing so they may challenge the constitutionality of the warrantless-eavesdropping program Bush publicly acknowledged in 2005.

The Friday hearing is needed, because disputes with pretrial decisions generally require the trial judge to permit an appeal.

The Obama administration is also siding with the former administration in its legal defense of July legislation that immunizes the nation's telecommunications companies from lawsuits accusing them of complicitity in Bush's eavesdropping program, according to testimony last week by incoming Attorney General Eric Holder.

That immunity legislation, which Obama voted for when he was a U.S. senator from Illinois, was included in a broader spy package that granted the government wide-ranging, warrantless eavesdropping powers on Americans' electronic communications.

A decision on the constitutionality of the immunity legislation is pending before Judge Walker in a separate case brought by the Electronic Frontier Foundation.

So to sum up: the Bush administration illegally spied on two lawyers to a Muslim charity without a warrant. They then accidentally turned over proof that they had illegally spied on them over to the lawyers, but got the courts to order them to return it, citing "State Secrets". The lawyers sued. A different judge ruled that the lawyers have to be given the document back and can continue with their lawsuit, which will determine whether or not the warrantless wiretapping was legal. But the Obama administration is demanding the judge reverse his ruling and kill the lawsuit, which will mean warrantless wiretapping will likely never go before a judge, and they certainly aren't going investigate it.

[The Duchess of Zeon]

You thought the government would give back its power to do warrantless wiretaps? Heee, we should be thankful Obama has actually repealed as much as he already has of some genuinely bad orders of Bush's, don't ask for him to be literally a saint, which is the sort of person who would be required to volunteer to give up that kind of surveillance power.

[The Romulan Republic]

But that's the problem. Every time the Government or Executive Branch's power expands, the next leader will be reluctant to give up the power. So the slide towards totalitarianism continues.

Obama may not be a saint, but the people have a right to expect better. He's our elected President. He should uphold our rights.

[Duckie]

Yeah, Obama's not a dyed-in-the-wool-liberal. He's in power, and he wants to keep the ability to wiretap, whether for legitimate defense reasons or not. I'm more willing to trust him with it than anybody else, but it's still disappointing.

That said, it's something pressure can come on later like the Guantanamo closings. Blogosphere! To the situation room!

[Illuminatus Primus]

But that's the problem. Every time the Government or Executive Branch's power expands, the next leader will be reluctant to give up the power. So the slide towards totalitarianism continues.

Obama may not be a saint, but the people have a right to expect better. He's our elected President. He should uphold our rights.

Its called legislation. Petition your lawmakers. The Congress can pass a law limited Presidential powers in these cases, and the courts could rule against the government.

[Spyder]

Good, it's important that people are reminded that while Obama is better then his predecessor, he's still a politician.

[The Romulan Republic]

I'll be using that blog Obama set up to complain, and I should probably contact my Congressman and Senator as well.

[The Original Nex]

I know we frown on posting stuff from partisan blogs here; but this is a fairly good rundown of the situation from Daily Kos that is (seems to be) written by an attorney, and disputes the accuracy/spirit of the article somewhat.

[quote="User "NCrissieB""]
Honestly, a part of me wishes the media would just give up on covering our legal system. I understand that public trials and a transparent judicial system are enshrined in the Constitution, and for good reason. But the media messes it up so consistently, and so badly, that their "coverage" is often worse than no coverage at all.

A case in point is this article on Wired Blog Network: Obama Sides With Bush in Spy Case.

Well, not exactly.

The Obama administration fell in line with the Bush administration Thursday when it urged a federal judge to set aside a ruling in a closely watched spy case weighing whether a U.S. president may bypass Congress and establish a program of eavesdropping on Americans without warrants.

So writes David Kravets for Wired Blog Network. Now, I don't know if Kravets is a lawyer, but I'm guessing not. His story basically parrots an AP story that was out yesterday with a similar headline. (Sorry, but I can't find the link to the AP story.) Like a lot of people, he may have thought the AP was a reliable source.

When it comes to covering court cases and decisions, in my experience, few in the media do even a passably adequate job. The AP usually doesn't, and this story isn't even close. It does, however, feed the popular narrative that Obama really won't be any different from Bush, so give up and go back to being cynical ... complaining but uninvolved. More on that later.

First, what really happened?

The Department of Justice, through Acting Assistant Attorney General Michael F. Hertz, filed a memorandum of law in support of a prior motion for a stay of trial proceedings in the case of Al-Haramain Islamic Foundation v. Obama (formerly Al-Haramain v. Bush). Don't worry about the legalese. I'll break it down for you.

A brief case history.

Al-Haramain Islamic Foundation is an Islamic charitable group. They filed a civil suit against the U.S., in the name of then-President George W. Bush, alleging their communications were illegally monitored, without a warrant, in violation of the 1978 Foreign Intelligence Surveillance Act (FISA). In defense, the DOJ filed three pretrial motions to dismiss or for summary judgment. Those motions asked the trial court - the Federal District Court for the Northern District of California - to dismiss the case, on various grounds.

The third motion alleged that Al-Haramain had no standing to sue, as they could not prove their communications had been monitored. The DOJ claimed that Al-Haramain could not prove they'd been monitored, because the NSA records of who was or was not monitored were classified. What's more, the DOJ refused to turn over those records, claiming the "state secrets" privilege.

In short, the Bush DOJ's position was essentially: "We have the only irrefutable evidence of who was spied upon, and it's classified and thus protected by the 'state secrets' privilege, so the defendant can't prove they were spied upon, so throw the case out. Nyah-nyah."

On January 5th, the trial court denied the motion to dismiss. But the trial court went beyond that, ruling that the "state secrets" privilege does not exist in FISA-related cases, because FISA supersedes that privilege. On January 19th, the Bush DOJ filed a petition to stay the trial proceedings pending the resolution of that appeal in the Ninth Circuit Court of Appeals.

Of course, the next day, President Barack Obama was inaugurated. Thus Al-Haramain v. Bush became Al-Haramain v. Obama, and on January 23rd, the Obama DOJ filed a memorandum explaining why the trial court should stay the proceedings pending appeal.

But doesn't that mean "Obama Sides With Bush in Spy Case?

Not exactly.

The January 5th ruling that the "state secrets" privilege does not exist in FISA-related cases was huge. This is not the same as the "executive privilege" we heard about in the Libby case, where the president asserts that all conversations with aides are protected because the president needs to have candid advice. The "state secrets" privilege covers classified information.

We can debate whether the Bush Administration classified too much (I think they did). We can debate whether the Obama Administration should or will declassify a lot of that information (I think they should and hope they will). But I hope we can agree that classified information must be protected unless and until it is declassified. A lot of it is classified for very good reasons, and we shouldn't throw the nation's baby out with Bush's bathwater.

The specific issue here is not whether or how the Obama DOJ will defend the Al-Haramain case. In fact, the January 23rd memorandum says not one word about whether or how the Obama Administration will treat that case, except that the Obama DOJ does want the trial court to stay proceedings until the Ninth Circuit hear the appeal of the trial court's January 5th order eliminating the "state secrets" privilege in FISA cases.

In legalese, that's called an interlocutory appeal, an appeal that is heard "between pleadings" to the trial court.

Umm ... Crissie ... it's too early for legalese.

Usually a case doesn't go to appeal until the trial court issues a final judgment, either a conviction in a criminal case (the government can't appeal an acquittal), or a judgment for a party in a civil case. The losing party then has a right to appeal that judgment in the next highest court. That appeal can include decisions made during the trial, as well as any pretrial decisions. So if the defendant in a civil case files a pretrial motion to dismiss, and that motion is denied, the case moves on to trial. If the plaintiff wins at trial, the defendant can appeal not only the decisions made during the trial, but also that decision to deny the pretrial motion to dismiss. All on one appeal. This both saves the appellate courts' time, and moves cases through the trial courts faster. (As if "fast" could apply to anything that happens in court cases, but that's another topic altogether.)

In an interlocutory appeal, a party that lost a pretrial motion asks the trial court to stop the proceedings while the appellate court hears the appeal on that pretrial motion. In general, the courts don't grant these requests. In order to qualify for an interlocutory appeal, the party must show that it would suffer "irreparable harm" if the case proceeds to trial, and that it would suffer that "irreparable harm" even if it wins at trial. Either merely having the trial, or the time that will pass before the trial is concluded, will cause the harm ... whether you win or lose at trial.

So what's the "irreparable harm" here?

There are two.

The first relates to a fax that was sent in error by the government to Al-Haramain's defense attorney. The fax was a classified document that proved Al-Haramain was spied on. When the DOJ learned of the fax, they immediately asked the court to order Al-Haramain's attorney to return it, because it was classified. The court agreed, and Al-Haramain's attorney did return the fax. (I've read that copies of the fax were also sent to several media outlets; I don't know whether they were ordered to return their copies, or whether they've done so.)

The trial court judge said he would review the fax in camera (secretly, in his chambers) so that no classified information would be released to the public. The Bush DOJ said that wasn't enough, because merely allowing the case to proceed to trial will require the court to stipulate (to state as a fact for the jury) that Al-Haramain was spied on, and that fact is the classified information they claim is protected by the "state secrets" privilege. So even if the classified document isn't released, the classified information would be released.

The second "irreparable harm" relates to whether the government will be able to appeal the January 5th decision. Remember, only the losing party can appeal the final judgment. If the government wins the case at trial - if, for example, Al-Haramain can't show they suffered any harm from being spied upon, or if the jury simply decides in favor of the government - the government has no right to appeal that January 5th decision. Al-Haramain would have a right to appeal, and if they did the government could cross-appeal on the January 5th decision. But if Al-Haramain doesn't appeal, the government couldn't appeal the decision on its own.

So the January 5th decision - striking down the "state secrets" privilege in FISA-related cases - would stand as persuasive (though not binding) precedent in other FISA-related cases, unless and until the government lost a FISA-related case and could appeal that decision.

So Obama's just saying "We need to settle this specific legal issue before the case goes on to trial?"

Yes, exactly.

The January 23rd memorandum to the court does not "side with Bush," except in the very narrow sense that the Obama Administration seems to agree that the appeal of the January 5th decision should happen before the case goes to trial. And there are sound constitutional reasons for that position.

The "state secrets" privilege is grounded in the president's Article II authority as Chief Executive, because whether to classify a document is an Executive Branch call. There are statutes setting out procedures for declassifying a document, but the decision to classify is and has always been an executive decision, usually made by the person or office creating the document, at the time of its creation. The rules for what kinds of documents should be classified are set by Executive Orders.

So essentially, the trial court found that the 1978 FISA supersedes Article II, and legislative acts can't supersede the Constitution. So the Ninth Circuit, and perhaps ultimately the U.S. Supreme Court, should decide whether the "state secrets" privilege applies, and how classified information should be handled, in FISA-related cases. While the specific classified information in this case is already public knowledge, that won't always be true. And while the specific classified information in this case does not seem to reveal any sensitive "sources and methods," that won't always be true either.

So regardless of whether and how the Obama Administration defend this one case, there are sound arguments for letting the appellate courts decide how to handle classified information in FISA-related cases. That will be especially important if the Obama Administration investigate and ultimately prosecute government officials on FISA violations. They will need to be sure they handle classified information in the best way to both protect sensitive "sources and methods" and provide transparency and justice for the parties.

So Obama kinda-sorta "Sides With Bush," but really wants to ensure the courts get these procedures right?

Yes, exactly.

But Obama wants to ensure courts get procedures right doesn't make for a properly cynical headline. It doesn't fit the clearly emerging narrative of "Obama will be just like Bush, so give up, go back to complaining because nothing ever changes." And that's the cynical narrative the media would love all of us Natives to buy, so the Villagers can go back to running things their way while we grumble despondently and go along. That cynicism is about discouraging we Natives from trying to stay engaged and involved in our government. It's about going back to business as usual, where the Villagers lead us from one vat of whine to the next, but always in that tut-tutting way that says "Of course, there is nothing you mere peons can do about this."

And I've had more than enough of that.[/quote]

Yes this is very long, and from DK, however I think this is a good counterpoint to the "RAR Obama will NEVAR give up PWERS!!" jargon some people are spouting out. Good to be skeptic, but also good to provide a different view.

The AP and most journalists can't be relied upon to cover certain things accurately. We here already know science is out for them; law is too. Journalists don't understand the intricacies of the law or legal cases or legal maneuvering (or they don't bother to care). It's important to actually understand the inner-workings of a case before you pass judgment on a motion.

If anyone with better legal knowledge than myself thinks "NCrissieB" is full of crap and is just an Obama apologist, please explain how; but so far, her diary has diffused my anger over this somewhat.

[ray245]

Now, while it is OK to argue that the killing of that lawsuit might be bad, I have to wonder, is the act of wiretapping by itself a bad thing?

Even if the Government did not get proper approval from its citizens and etc, from a citizen perspective, is wiretapping really that harmful and bad?

Unless you are discussing about illegal stuff, why do you have to fear the act of government wiretapping us? Sure, we all have tons of personal scandals and etc, but I doubt that as a citizen have to fear our scandals leaking out.

I mean those people wiretapping us is not the media.

Feel free to tear my argument apart, as always.

[The Original Nex]

Now, while it is OK to argue that the killing of that lawsuit might be bad, I have to wonder, is the act of wiretapping by itself a bad thing?

The mass wiretapping/data mining of millions countless people (which is what has been revealed by former NSA analyst Russell Tice)? Yes. That's bad.

Even if the Government did not get proper approval from its citizens and etc, from a citizen perspective, is wiretapping really that harmful and bad?

Ever heard of a thing called "privacy"? Not to mention that it's not Constitutional.

Unless you are discussing about illegal stuff, why do you have to fear the act of government wiretapping us? Sure, we all have tons of personal scandals and etc, but I doubt that as a citizen have to fear our scandals leaking out.

Ever wondered if maybe some government type might use said information to, oh, I dunno, for means OTHER than stopping illegal/terrorist activities?

The Administration wiretapped/datamined Journalists for purely political purposes. They cast a wide net capturing innocent civilians in the wake. Even if you're not talking about illegal activities, don't you think there's embarrassing, private information that people discuss with those close to them that they wouldn't want on record in an NSA database?

Furthermore, this is all besides the point; even if you WERE talking about illegal things when you were being wiretapped, if they tapped you illegally, the evidence is TAINTED. I have no problem wiretapping people if you do it LEGALLY (yes FISA fixed this somewhat, but not completely).

I mean those people wiretapping us is not the media.

So what?

[ray245]

Ever heard of a thing called "privacy"? Not to mention that it's not Constitutional.

Well, I really mind how important my privacy is anyway.

Ever wondered if maybe some government type might use said information to, oh, I dunno, for means OTHER than stopping illegal/terrorist activities?

The Administration wiretapped/datamined Journalists for purely political purposes. They cast a wide net capturing innocent civilians in the wake. Even if you're not talking about illegal activities, don't you think there's embarrassing, private information that people discuss with those close to them that they wouldn't want on record in an NSA database?

Furthermore, this is all besides the point; even if you WERE talking about illegal things when you were being wiretapped, if they tapped you illegally, the evidence is TAINTED. I have no problem wiretapping people if you do it LEGALLY (yes FISA fixed this somewhat, but not completely).

Ahh, I see.

Given the sheer amount of times I got embarrassed, I don't care if any embarrassing stuff got leaked.

That's my personal opinion though.

[hongi]

I mean those people wiretapping us is not the media.

Yeah, it's worse. It's the government.

By the way, it's 'those people wiretapping us are not the media', because people is plural.

[Lord MJ]

Wired

So to sum up: the Bush administration illegally spied on two lawyers to a Muslim charity without a warrant. They then accidentally turned over proof that they had illegally spied on them over to the lawyers, but got the courts to order them to return it, citing "State Secrets". The lawyers sued. A different judge ruled that the lawyers have to be given the document back and can continue with their lawsuit, which will determine whether or not the warrantless wiretapping was legal. But the Obama administration is demanding the judge reverse his ruling and kill the lawsuit, which will mean warrantless wiretapping will likely never go before a judge, and they certainly aren't going investigate it.

Should've turned that proof over to the press before the administration could even have the chance to file their State Secrets motion. What would be the legal wrong in that, other than perhaps breach of Attorney Client Privaledge which can be waived. Or is it illegal for counsel involved to discuss any evidence that is in an active case or trial while that case or trial is in progress?

[CmdrWilkens]

Wired

So to sum up: the Bush administration illegally spied on two lawyers to a Muslim charity without a warrant. They then accidentally turned over proof that they had illegally spied on them over to the lawyers, but got the courts to order them to return it, citing "State Secrets". The lawyers sued. A different judge ruled that the lawyers have to be given the document back and can continue with their lawsuit, which will determine whether or not the warrantless wiretapping was legal. But the Obama administration is demanding the judge reverse his ruling and kill the lawsuit, which will mean warrantless wiretapping will likely never go before a judge, and they certainly aren't going investigate it.

Should've turned that proof over to the press before the administration could even have the chance to file their State Secrets motion. What would be the legal wrong in that, other than perhaps breach of Attorney Client Privaledge which can be waived. Or is it illegal for counsel involved to discuss any evidence that is in an active case or trial while that case or trial is in progress?

Gag orders can be made in regards to certain cases but I doubt anybody kows whether there was such an order for this case. Moreover the evidence, in this case the fac, prior to the claims of "State Secrets" was evidence gathered int he process of discovery prior to trial. There is nothing in termsof Attorney-Client privledge that protects it because the evidence is not the conversation between the plantiff (or defendents) and their lawyers but is rather documentary proof. Now most lawyers will hold on to whatever evidence they can get so as to be able to better frame the delviery of evidence at trial for maximum impact but there is nothing (other than tactical considerations) stopping the Al-Haramin (sp) lawyers from releasing the fax prior to the claim of "State Secrets" being upheld.

That said I haven't read the specific pleadings but if the request is for a STAY and not dismissal then the Obama administration is not even close to asking the judge to kill the case. A stay allows for a temporary hold in proceedings until some other time so that one side or the other may conduct business that will affect their case. Whether it is request so that one side may have more time to depose witness or collect evidence or, as apparently in this case, to pursue seperate motions on appeal it does not directly affect the existence of the case.

[Dominus Atheos]

If anyone with better legal knowledge than myself thinks "NCrissieB" is full of crap and is just an Obama apologist, please explain how; but so far, her diary has diffused my anger over this somewhat.

I may not have better legal knowledge then anyone, but I can say that the blog post is a crap-filled Obama apologia. The judge in the case ruled that the document had to be released back to the lawyers. The Obama administration wants the judge to stay that decision, and permit an appeal of it. Obviously the point of an appeal is to get the ruling reversed, which would kill the lawsuit. Anyone who argues that the Obama administration is not trying to kill the lawsuit with this request is an idiot.

[General Zod]

If anyone with better legal knowledge than myself thinks "NCrissieB" is full of crap and is just an Obama apologist, please explain how; but so far, her diary has diffused my anger over this somewhat.

I may not have better legal knowledge then anyone, but I can say that the blog post is a crap-filled Obama apologia. The judge in the case ruled that the document had to be released back to the lawyers. The Obama administration wants the judge to stay that decision, and permit an appeal of it. Obviously the point of an appeal is to get the ruling reversed, which would kill the lawsuit. Anyone who argues that the Obama administration is not trying to kill the lawsuit with this request is an idiot.

Did you even bother reading the full thing, or did you just read the summary at the end and decide it was automatic Obama apologism because it didn't agree with your point of view? Whether or not you agree with it (after actually reading it), it does make a very good point that the media is largely incompetent when it comes to handling legal trials as any of the threads on here about criminal acts make painfully obvious.

[SirNitram]

Given the general incompetence and bias of the media, I'm quite open to the idea they're simply too stupid to grasp the importance of why you should let state-secrets appeals go first, and too enamoured of 'OBAMA IS A DIRTY LIBERAL WHO LIES ALL THE TIME, STOOOOPID DEMS' type bullshit, that they would leap on this without checking. I'll watch and see.

[Chris OFarrell]

You know, THIS kind of situation would be the perfect test and showcase of Obamas 'open' administration.

There appears to be a lot of confusion as to exactly what Obama has sided with Bush on, what it means, what his stance is e.t.c.

This would be a great point for him to write a detailed blog post explaining *exactly* what all this means in plain language on his Whitehouse blog, justifying his decisions to the public.

I don't think it'll happen, but it would be the perfect time.

[Singular Intellect]

Could someone explain to me the exact dangers of warrantless wiretapping? I'm really not seeing what the problem is with it, even though there seems to be a big fuss about it.

[General Zod]

Could someone explain to me the exact dangers of warrantless wiretapping? I'm really not seeing what the problem is with it, even though there seems to be a big fuss about it.

You don't see a problem with letting the government listen in on the communications of whoever they feel like without any legitimate reason whatsoever? You're not one of those idiots who think that if people have nothing to hide they should have nothing to fear are you?

[Duckie]

Could someone explain to me the exact dangers of warrantless wiretapping? I'm really not seeing what the problem is with it, even though there seems to be a big fuss about it.

The government can spy on anyone they choose for any reason without even asking a judge without any notification or even official record that they have spied on you or obtained evidence. If they choose to do so, they can spy on you.

[CmdrWilkens]

Could someone explain to me the exact dangers of warrantless wiretapping? I'm really not seeing what the problem is with it, even though there seems to be a big fuss about it.

Others have answered but I'll go a bit more into depth. The 4th Amendment combined with the 9th was designed to address one of the more odious aspects of British rule on the colonies in paticular in Boston after agitation began in the late 1760s. That is without a court order, or eeven suspicion of criminal activity, British troops could and did routinely enter houses, search through personal effects and retain as evidence anything they chose. Rather clearly this means that law abiding citizens have no recourse to ensure that their private lives remain private. Enter the 4th and 9th amendments which collectively hold that a person's personal effects are not subject by review from the government unless there is either sufficient cause to issue a warrant OR the information is voluntarily surrendered.

In the case of wiretapping we have a situation where all sorts of conversations, including those that would normally be protected by privledge and often including those which are highly personal (details of the current program have included recording service members conversing with their spouses in the states in a manner that one might expect from married couples with a healthy sexual appetitie) are taking place all the time. Without a warrant the government is free to intrude upon that privacy and record and store copies of conversations that may be deeply personal even if they have no relationship at all to criminal activity.

The requirement for a warrant is a basic precaution that forces the government to show that there is sufficient reason to believe that conversations (or phyiscal evidence in the case of physical search warrants) between two parties will cotain information rleevant to the discovery and prosecution of criminal activities. Without that step there is no mechanism for restrain in what the government listens to whether it be private lives or the political strategizing of the opposition party.

[Ender]

You know, THIS kind of situation would be the perfect test and showcase of Obamas 'open' administration.

There appears to be a lot of confusion as to exactly what Obama has sided with Bush on, what it means, what his stance is e.t.c.

This would be a great point for him to write a detailed blog post explaining *exactly* what all this means in plain language on his Whitehouse blog, justifying his decisions to the public.

I don't think it'll happen, but it would be the perfect time.

That stuff has run into an unforeseen roadblock

link

If the Obama campaign represented a sleek, new iPhone kind of future, the first day of the Obama administration looked more like the rotary-dial past.

Two years after launching the most technologically savvy presidential campaign in history, Obama officials ran smack into the constraints of the federal bureaucracy yesterday, encountering a jumble of disconnected phone lines, old computer software, and security regulations forbidding outside e-mail accounts.

What does that mean in 21st-century terms? No Facebook to communicate with supporters. No outside e-mail log-ins. No instant messaging. Hard adjustments for a staff that helped sweep Obama to power through, among other things, relentless online social networking.

"It is kind of like going from an Xbox to an Atari," Obama spokesman Bill Burton said of his new digs.

In many ways, the move into the White House resembled a first day at school: Advisers wandered the halls, looking for their offices. Aides spent hours in orientation, learning such things as government ethics rules as well as how their paychecks will be delivered. And everyone filled out a seemingly endless pile of paperwork.

There were plenty of first-day glitches, too, as calls to many lines in the West Wing were met with a busy signal all morning and those to the main White House switchboard were greeted by a recording, redirecting callers to the presidential Web site. A number of reporters were also shut out of the White House because of lost security clearance lists.

By late evening, the vaunted new White House Web site did not offer any updated posts about President Obama's busy first day on the job, which included an inaugural prayer service, an open house with the public, and meetings with his economic and national security teams.

Nor did the site reflect the transparency Obama promised to deliver. "The President has not yet issued any executive orders," it stated hours after Obama issued executive orders to tighten ethics rules, enhance Freedom of Information Act rules and freeze the salaries of White House officials who earn more than $100,000.

The site was updated for the first time last night, when information on the executive orders was added. But there were still no pool reports or blog entries.

No one could quite explain the problem -- but they swore it would be fixed.

One member of the White House new-media team came to work on Tuesday, right after the swearing-in ceremony, only to discover that it was impossible to know which programs could be updated, or even which computers could be used for which purposes. The team members, accustomed to working on Macintoshes, found computers outfitted with six-year-old versions of Microsoft software. Laptops were scarce, assigned to only a few people in the West Wing. The team was left struggling to put closed captions on online videos.

Senior advisers chafed at the new arrangements, which severely limit mobility -- partly by tradition but also for security reasons and to ensure that all official work is preserved under the Presidential Records Act.

"It is what it is," said a White House staff member, speaking on the condition of anonymity. "Nobody is being a blockade right now. It's just the system we need to go through."

The system has daunted past White House employees. David Almacy, who became President George W. Bush's Internet director in 2005, recalled having a week-long delay between his arrival at the White House and getting set up with a computer and a BlackBerry.

"The White House itself is an institution that transitions regardless of who the president is," he said. "The White House is not starting from scratch. Processes are already in place."

One White House official, who arrived breathless yesterday after being held up at the exterior gate, found he had no computer or telephone number. Recently called back from overseas duty, he ended up using his foreign cellphone.

Another White House official whose transition cellphone was disconnected left a message temporarily referring callers to his wife's phone.

Several people tried to route their e-mails through personal accounts.

But there were no missing letters from the computer keyboards, as Bush officials had complained of during their transition in 2001.

And officials in the press office were prepared: In addition to having their own cellphones, they set up Gmail accounts, with approval from the White House counsel, so they could send information in more than one way.

[Dominus Atheos]

If anyone with better legal knowledge than myself thinks "NCrissieB" is full of crap and is just an Obama apologist, please explain how; but so far, her diary has diffused my anger over this somewhat.

I may not have better legal knowledge then anyone, but I can say that the blog post is a crap-filled Obama apologia. The judge in the case ruled that the document had to be released back to the lawyers. The Obama administration wants the judge to stay that decision, and permit an appeal of it. Obviously the point of an appeal is to get the ruling reversed, which would kill the lawsuit. Anyone who argues that the Obama administration is not trying to kill the lawsuit with this request is an idiot.

Did you even bother reading the full thing, or did you just read the summary at the end and decide it was automatic Obama apologism because it didn't agree with your point of view? Whether or not you agree with it (after actually reading it), it does make a very good point that the media is largely incompetent when it comes to handling legal trials as any of the threads on here about criminal acts make painfully obvious.

Did you even bother reading the full thing, or did you just read the the first two paragraphs and then decide it was about the media based on that? Because if you had actually read the entire thing you would have found the author was bemoaning what a poor job the media does in covering legal issues only in the first two paragraphs, then goes on to give her own opinion on what the request means, which is this:

The January 23rd memorandum to the court does not "side with Bush," except in the very narrow sense that the Obama Administration seems to agree that the appeal of the January 5th decision should happen before the case goes to trial. And there are sound constitutional reasons for that position.

The "state secrets" privilege is grounded in the president's Article II authority as Chief Executive, because whether to classify a document is an Executive Branch call. There are statutes setting out procedures for declassifying a document, but the decision to classify is and has always been an executive decision, usually made by the person or office creating the document, at the time of its creation. The rules for what kinds of documents should be classified are set by Executive Orders.

In other words: "Obama is appealing this decision because it would deprive him of some power, and he wants as much power as he can get, and we should all trust him with power, because gosh darn it, deep down in my heart, I know he would never abuse his power, and you should all trust him, too."

The first sentence of the following paragraph is the most telling:

So essentially, the trial court found that the 1978 FISA supersedes Article II, and legislative acts can't supersede the Constitution.

This is literally the exact same argument the Bush apologists used:

On the eavesdropping issue, Bush said "absolutely" he has the legal authority to order such surveillance, citing Article 2 of the Constitution, which he said gives him the responsibility and authority to deal with an enemy who declares war against the United States

There have been numerous articles and posting's by members much smarter then myself that tear this argument to shreds, and this fucking Obama apologist is now using it to defend his bullshit. The hypocrisy makes me physically ill. I'm starting to find a reason for that cannon smiley since it's the one that best expresses my desire to shoot someone, but for now I'll just use this:

[Sky Captain]

Anyway do wiretapping really has potential to uncover terrorist activities because it seems obvious to me a terrorist group planning some sort of attack won`t talk openly about their plans on a phone.