Appeals Court Holds Firm: The Government Cannot Be Sued For Violating Its Own Wiretapping Laws

from the US-Government-issues-blank-check-for-4th-Amendment-violators dept

Fri, Dec 7th 2012 2:42pm — Tim Cushing

There's more bad news on the Fourth Amendment front as the appeals court reviewing a lawsuit filed against the US government for illegally spying on American citizens has declined to rehear the Al-Haramain case.

A federal appeals court is refusing to reconsider its August ruling in which it said the federal government may spy on Americans’ communications without warrants and without fear of being sued.

The original decision by a three-judge panel of the 9th U.S. Circuit Court of Appeals this summer reversed the first and only case that successfully challenged President George W. Bush’s once-secret Terrorist Surveillance Program.

Without comment, the San Francisco-based appeals court announced Wednesday that it would not rehear (.pdf) the case again with a larger panel of 11 judges, effectively setting the stage for a Supreme Court showdown. The appeals court Wednesday also made some minor amendments (.pdf) to its August ruling, but the thrust of it was the same as before.

Not only does this mean the plaintiffs will have to take the case to the Supreme Court (if it will hear the case), but it also means the damages awarded ($20,000 each for the two plaintiffs and $2.5 million in legal fees) have been reversed.

This also means the Bush's Terrorist Surveillance Plan will continue unchecked as citizens will be unable to bring suits against the government for warrantless spying. The decision rests on a couple of dubious items: a "missing" sovereign immunity waiver and a document mistakenly sent to the plaintiffs that was later designated a "state secret."

The San Francisco-based appeals court had ruled that when Congress wrote the law regulating eavesdropping on Americans and spies, it never waived sovereign immunity in the section prohibiting targeting Americans without warrants. That means Congress did not allow for aggrieved Americans to sue the government, even if their constitutional rights were violated by the United States breaching its own wiretapping laws...

A lower court judge found in 2010 that two American lawyers’ telephone conversations with their clients in Saudi Arabia were siphoned to the National Security Agency without warrants. The allegations were initially based on a classified document the government accidentally mailed to the former al-Haramain Islamic Foundation lawyers Wendell Belew and Asim Ghafoor.

The document was later declared a state secret, removed from the long-running lawsuit and has never been made public.

Concern about the government's ability to designate nearly anything as a "state secret" in order to prevent the release or use of possibly damning evidence has already been discussed by the Supreme Court during oral arguments in the Clapper v. Amnesty International case. In this case, the belated "state secret" designation effectively limited the plaintiffs to citing circumstantial evidence, which is far less effective than producing an actual document showing that the NSA was doing exactly what the plaintiffs claimed it was.

Between the "sovereign immunity" that is unlikely to ever be waived and the ability to designate damning evidence post-facto as "state secrets," the NSA has set itself up with the ability to run a constitutionally dubious, but legally sound, domestic spying program. The system of checks and balances our nation was formed on now more closely resembles a series of erected walls protecting government agencies from being held accountable for their actions.

Al Haramain 9th Circuit (PDF)Al Haramain 9th Circuit (Text)

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Filed Under: immunity, privacy, wiretapping

28 Comments

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Anonymous Coward, 7 Dec 2012 @ 2:52pm

sounds similar to what happens in another country, you know the one, it's got a Great Firewall as well!
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Silver Fang (profile), 7 Dec 2012 @ 3:09pm

Well, the government and the courts have been crapping all over the Fourth Amendment for over a decade now, so why would we be surprised?
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Anonymous, 7 Dec 2012 @ 3:09pm

Dec. 7
I wish the Japanese had finished the job!
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Chosen Reject (profile), 7 Dec 2012 @ 3:10pm

I've heard of contracts that try to remove the right to sue, but I've never heard of Congress having the power to prevent you from suing. That's absurd. Doesn't that mean that congress could eliminate the entire Judicial Branch?

Whereas, too many people stop us from doing what we want,

It is resolved that no one can sue us anymore.

PS. You can't sue us for this law either.
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Anonymous Coward, 7 Dec 2012 @ 3:12pm

Stock up the bomb shelter, were in for a long night.
This is not a comment for or against guns or gun control, just what I see happening. When a people have no recourse against gross grievances against them by their government, they all eventually respond in one way. Between the current repressive governments and how close the USA is moving to them, I fear an uprising stirring. And I'm worried this is coming closer to being an inevitable instead of a possibility.

A free people ought not only to be armed and disciplined, but they should have sufficient arms and ammunition to maintain a status of independence from any who might attempt to abuse them, which would include their own government.

George Washington - Purported speech to Congress, January 7, 1790 in the Boston Independent Chronicle, January 14, 1790.
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Anonymous Coward, 7 Dec 2012 @ 3:15pm

What good is separation of powers when all 3 collude to screw you?
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The Real Michael, 7 Dec 2012 @ 3:30pm

It's simple: the US government has been invaded by people who hate our country. They do everything in their power to destroy the cornerstones of our nation -- the Constitution and Bill of Rights. We keep sending our soldiers abroad to "fight for freedom" in countries which couldn't possibly harm us, let alone affect our rights. Meanwhile, the REAL war against our freedoms is occurring from within.

Just wait until the TSA unveils their taser bracelets. All hell is going to break loose.
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out_of_the_blue, 7 Dec 2012 @ 3:31pm

Whattaya complainin' bout? It's perfectly legal!
See now why I rail against legalisms and morality even in the minor area of copyright? They're just like you pirates only on larger scale! Don't expect those thugs to uphold your freedom of speech or care about the (mistaken) legalisms that Mike wants Megaupload to freely operate under!

When gov't officials can "legally" violate the clear intent of the Constitution and all common law since Magna Carta, and without the least twinge of moral conscience, then civilization won't last much longer. The Rich are going for absolute power; they always do.

But cheer up: you'll be able to see truly "free market capitalism" in action, unfettered by laws or regulations!
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in_to_the_blue, 7 Dec 2012 @ 3:36pm

Re: Whattaya complainin' bout? It's perfectly legal!
They're just like you pirates only on larger scale!

um

no
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Anonymous Coward, 7 Dec 2012 @ 3:44pm

Maybe I remember this incorrectly, but I thought that there always were certain hurdles to jump before one is allowed to sue the federal government. This is not not new, what is new it the blatant in your face attitude the government seems to be taking in this regard.
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Rikuo (profile), 7 Dec 2012 @ 3:46pm

Re: Whattaya complainin' bout? It's perfectly legal!
"See now why I rail against legalisms and morality even in the minor area of copyright?"

You...rail AGAINST morality in regards to copyright? Since when?
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Anonymous Coward, 7 Dec 2012 @ 4:38pm

This is simply unbelievable to me. How can you not sue your government when it did something illegal? This is the definition of a totalitarian state to me.
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Anonymous Coward, 7 Dec 2012 @ 5:01pm

So no checks and balances throught the constitution and bill of rights, and no accountability through the laws they make....... sounds peachy

Power hungary hypocrites, if they refuse to follow the very simple laws given by the people, i dont see why you should have to follow the laws they continue to pile onto you

Hypocrites
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Anonymous Coward, 7 Dec 2012 @ 5:16pm

Laws are meant for lesser people.

Now get back to work, Proles.
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Anonymous Coward, 7 Dec 2012 @ 5:26pm

"Wolf cannot be held accountable for missing sheep" says Wolf.

We will now check in with Mr. Fox for our daily henhouse count.
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Pwdrskir (profile), 7 Dec 2012 @ 5:28pm

Wolf meet Hen...
I would have been surprised if the wolf guarding the hen house would have shot himself...

Who's to stop the Govt from illegally spying on us?

"William Binney, a former official with the National Security Agency, recently said that domestic surveillance in the U.S. has increased under President Obama, and trillions of phone calls, emails and other messages sent by U.S. citizens have been intercepted by the government."

"In the closing lines of a documentary by Laura Poitas, Binney notes that just because 'we call ourselves a democracy, it doesn�t mean we will stay that way.' The real problem, he says, is that 'people may have nothing to say about it� we haven�t had anything to say so far.'�
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Pwdrskir (profile), 7 Dec 2012 @ 5:29pm

Re: Wolf meet Hen...
Damn, AC beat me to the Wolf analogy.
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Anonymous Coward, 7 Dec 2012 @ 6:07pm

I've always thought sovereign immunity was a very bad idea. This is why.
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Anonymous Coward, 7 Dec 2012 @ 6:11pm

Re:
Comment #15 nails it: "Wolf cannot be held accountable for missing sheep" says Wolf.

The ability for the government to basically let itself get away with breaking its own laws is a very, very screwed up way of doing things.
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Anonymous Coward, 7 Dec 2012 @ 6:30pm

Re: Whattaya complainin' bout? It's perfectly legal!
You're confusing Laissez-faire with Capitalism, Dumb ass.

Thomas Sowell KICKS YOUR ASS!!
http://www.youtube.com/watch?v=tkaxekY2Hqg
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Not an Electronic Rodent (profile), 8 Dec 2012 @ 5:32am

Re:
Nope... that one's more honest and less invasive of privacy.
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Not an Electronic Rodent (profile), 8 Dec 2012 @ 5:35am

Re:
Well, the government and the courts have been crapping all over the Fourth Amendment for over a decade now, so why would we be surprised?
It might be nice if you could stop them doing that.. then they might also tone down the crapping all over the laws of other countries too.
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Anonymous Coward, 8 Dec 2012 @ 6:30am

Seriously, it is decisions like this that makes me question whether or not these "judges" are actualy worthy enough of bearing the tittle, I mean holy shit.
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Anonymous Coward, 8 Dec 2012 @ 11:42am

Re: Whattaya complainin' bout? It's perfectly legal!
Go away. Tired of needing an umbrella to fend off the spittle flying from you whenever you spew all over the comments.
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Anonymous Coward, 8 Dec 2012 @ 3:03pm

It's been said ad nauseum that "nobody is above the law". The problem with that statement is that THE LAW ITSELF places some people above others.
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Washington, 9 Dec 2012 @ 4:27am

Federal Traitors
Wow, these 3 "so called" federal judges took a huge shit on the US Constitution and the 4th Amendment. I felt sick to my stomach reading this article, because I became apparent that these federal judges are grossely negligent in the constitutional duties. They use the US Constitution as toilet paper, and we should no longer recognize their authority. I think our fore fathers of this great nation would have probably labeled these federal judges as traitors.
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Anonymous Coward, 10 Dec 2012 @ 5:35am

Re: Federal Traitors
They are mere puppets with someone else pulling their strings higher above.
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Gregg, 10 Dec 2012 @ 6:14am

Re: Whattaya complainin' bout? It's perfectly legal!
I could eat a bowl of Alpha-Bits and shit a better argument than you.

For the rest of the week, everyone just ignore his comments and move along.
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