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Warrentless Wiretapping - Whose Freedom?

The primary issue was "standing" (the right to file a lawsuit or file a petition under the circumstances). In order to have legal standing to file suit, you have to be a live party with a provable grievance. It was like a Kafka novel.
Opinion and Order on Case No. 06-274-KI
Opinion and Order on Case No. 06-274-KI
Tuesday, August 29th, 2006. - United States District Court - Federal Courthouse - SW 4th & Salmon - 9th floor. Portland, Oregon. Cascadia (NW United States).

Judge King presiding. Hearing on motions in the warrantless wiretapping case: Case No. 06-274-KI


Judge King asked one of the plaintiffs' attorneys how he planned to prove standing for his client. How could he prove his client had been the subject of warrantless wiretapping if he had no access to government documents and was forbidden to refer to the document the executive brand via the judicial branch compelled the plaintiffs to return and forget? The paper that spelled out the fact that these clients were being listened to, with no warrant obtained nor asked for, in direct violation of the law of this land... even under the ridiculously lax FISA requirements. (Foreign Intelligence Surveillance Act:  http://www.fas.org/irp/agency/doj/fisa/) How did plaintiffs plan to prove there was no FISA warrant if they did not have access to documents proving or disproving the fact and with the government refusing to say whether or not there was a FISA warrant.

Plaintiff's attorney argued ably that he would need to rely on deductive logic... that 14,000 requests for FISA warrants had been applied for and 13,995 granted. Therefore, since the government is choosing to defend themselves in this suit instead of produce that warrant, we can infer there was none.

Motions being argued by plaintiffs against the government's warrantless wiretapping faced an almost featureless defense: a stonewall propped up by government attorneys, relying almost entirely on an attempt to redefine the word "secret." They said warrantless wiretapping was still a secret from those who had not heard about it, that the public not only had no right to see the document or know of its contents, they must forget what they heard and not breathe a word. Reference to the very existence of the document would not be allowed. The only nod that there was ever a document indicating the executive branch had violated the constitution and the law as prescribed by congress is a statement that has been submitted and accepted into evidence of one of the plaintiff's recollection of the contents of the document.

One of the plaintiffs' attorneys mentioned Judge King as being extremely cautious because of the backlash landing on the judge who recently had the courage to call the warrantless wiretapping program illegal and demand its cessation. Indeed, Judge King tiptoed around government arguments that a secret is something that almost everyone can know but are legally obliged to forget and not talk about. What? A gag order for the whole country? He was uncomfortable even with the idea of stipulating facts most people already know. He doesn't want to step on the toes of the Executive branch and expressed a belief that he had no power to do so. Plaintiffs' attorneys reminded him that the separation of the 3 branches of government was meant to create immunity from the other branches allowing them the independence to check and balance each other... That, in the past, the branches relied on faith that they would not run roughshod over each others' territory. Faith. However, GW and his puppeteers have done just that and have done it blatantly, unapologetically. Broken faith.

Plaintiffs' attorneys reminded Judge King of the precedent of judges using their power as an instrument of the branch of justice to right some wrongs and air that which should never have happened in the first place, such as declassifying the Pentagon papers. However, at this point, Plaintiffs' attorneys are not even arguing for de-classification or sharing of the document(s) with them, though there is an appealable defect presented by that in that defendant (govt) attorneys refuse to say even if they have seen the contents of the document that does not exist legally. The government says it's a secret. That baring that secret to the light endangers national security. That those who hate our freedom will know they are being watched and listened to.

Surprisingly, an Oregonian attorney argued the radical stance that the document should be de-classified as it is no longer secret, under the same common-sense criteria as we apply to gravity and our orbit around the sun, and that, whether a person bears good will or the most evil intentions against this country, the executive branch's warrantless wire-tapping is no longer secret. Especially not from those "who hate our freedom." They already know. He insisted that the public interest inherent in the issue requires the document be shared with the public.

At the time I had to leave, following are the facts the government would not reveal or stipulate:

* the plaintiffs were subjects of the warrantless wiretapping program
* there was a FISA warrant
* there is a warrantless wiretapping program
* there exists the document published on corporate newspapers *saying* there is a warrantless wiretapping program
* and I'm sure I've forgotten a few... perhaps the law of gravity. (btw: I'm all for *defying* the law of gravity, but denying it? c'mon)

There is a quote inscribed on the 9th floor federal courthouse wall: "The truth does not hide itself in dark corners." That's silly. Obviously it does. And, it's clear from this case who the government considers the national security threat: an informed populace.

Who hates whose freedom?

On which side should caution now prevail?


Note: This summary was written as best as I can remember and express it. I'm sure it is flawed. Add, contradict or opine as you see fit.

Opinion and Order attached to this article.


Some definitions:

n. the right to file a lawsuit or file a petition under the circumstances. A plaintiff will have standing to sue in federal court if a) there is an actual controversy, b) a federal statute gives the federal court jurisdiction, and c) the parties are residents of different states or otherwise fit the constitutional requirements for federal court jurisdiction. A state court example: a trade association will have standing to file a petition for a writ of mandate to order a state government agency to enforce a regulation if the association represents businesses affected by the regulation, and it would be impractical for each business to file its own petition. ( link to dictionary.law.com)

Stipulation:  link to dictionary.law.com
n. an agreement, usually on a procedural matter, between the attorneys for the two sides in a legal action. Some stipulations are oral, but the courts often require that the stipulation be put in writing, signed and filed with the court. ( http://www.m-w.com/)

1 a : kept from knowledge or view : HIDDEN b : marked by the habit of discretion : CLOSEMOUTHED c : working with hidden aims or methods : UNDERCOVER <a secret agent> d : not acknowledged : UNAVOWED <a secret bride> e : conducted in secret <a secret trial>
2 : remote from human frequentation or notice : SECLUDED
3 : revealed only to the initiated : ESOTERIC
4 : designed to elude observation or detection <a secret panel>
5 : containing information whose unauthorized disclosure could endanger national security -- compare CONFIDENTIAL, TOP
Etymology: Middle English, from Anglo-French secré, secret, from Latin secretus, from past participle of secernere to separate, distinguish, from se- apart + cernere to sift -- more at SECEDE, CERTAIN ( http://www.m-w.com/)

1 : divided into classes or placed in a class <classified ads>
2 : withheld from general circulation for reasons of national security <classified information> ( http://www.m-w.com/)

1 : the condition of being safe from undergoing or causing hurt, injury, or loss
2 : a device (as on a weapon or a machine) designed to prevent inadvertent or hazardous operation
3 a (1) : a situation in football in which a member of the offensive team is tackled behind its own goal line that counts two points for the defensive team -- compare TOUCHBACK (2) : a member of a defensive backfield in football who occupies the deepest position in order to receive a kick, defend against a forward pass, or stop a ballcarrier b : a billiard shot made with no attempt to score or so as to leave the balls in an unfavorable position for the opponent c : BASE HIT
Etymology: Middle English saufte, from Anglo-French salveté, saufté, from salf safe ( http://www.m-w.com/)

1 a : allegiance to duty or a person : LOYALTY b (1) : fidelity to one's promises (2) : sincerity of intentions
2 a (1) : belief and trust in and loyalty to God (2) : belief in the traditional doctrines of a religion b (1) : firm belief in something for which there is no proof (2) : complete trust
3 : something that is believed especially with strong conviction; especially : a system of religious beliefs <the Protestant faith>
synonym see BELIEF - on faith : without question <took everything he said on faith>
faith: Etymology: Middle English feith, from Anglo-French feid, fei, from Latin fides; akin to Latin fidere to trust -- more at BIDE( http://www.m-w.com/)

3 : prudent forethought to minimize risk
4 : one that astonishes or commands attention <some shoes you see...these days are a caution -- Esquire>
Etymology: Latin caution-, cautio precaution, from cavEre to be on one's guard -- more at HEAR ( http://www.m-w.com/)
good report. 07.Sep.2006 19:03

this thing here

wish i could be there.

>Indeed, Judge King tiptoed around government arguments that a secret is something that almost everyone can know but are legally obliged to forget and not talk about. What? A gag order for the whole country?<

this is just profoundly ridiculous.

all they have, their entire legal defense, is simply the use of state secret priviledges. that's it. no case law, no contrary evidence, nothing. once again, all i see in this government's exercise of strength and priviledge is desperation and corruption and evil. they could not stand on their own integrity, so they stand on crutches of violence and deceit and fear...

Motion Outcome 07.Sep.2006 20:19

miss ellipses

Sorry. I should have included the ruling from the start:

"Motion to dismiss denied, gov's motion to prevent our access to the doc granted."

(thanks all you stalwart attorneys and various and sundry defenders of "our freedom.")