Put the pitchforks down, you got the wrong monster.

( – promoted by buhdydharma )

Wow people. Did anyone actually look up why we are in such mob mode over wiretapping? I see the torches head towards the Obama Administration’s Department of Justice when it should be marching on Capital Hill.

The radical departure the Bush Administration made in regards to intelligence gathering.

was between active and passive wiretapping.

While FISA has been legal since the 1970s, you still had to present probably cause to the FISA court to get issued your search warrant for wiretapping. This even included retroactive warrants, due to time constraints in the modern age and instantaneous global communication, so you could even go back and do the paperwork.

What it did not allow for was passive wiretapping filling up databases to be sifted through over a course of time. If the NSA program under the Bush Administration is still live, then every moment of every day every citizen’s 4th Amendment right against unreasonable searches and seizures is being violated.

Also, no Warrants shall issue be issued, but upon probable cause. It’s plain as day in the Constitution, no legal opinion by some obscure court required.

The NSA has no probably cause to gather and store information on citizens, it is unconstitutional.

And to equate the passive gathering of personal information of private citizens with that of active investigation associated with FISA is disingenuous at best.

And “trust us” is no longer a valid response.

Which leads us to redress. This is where it gets funny.

The claims made by the DOJ is actually in line with the rule of law. The right to sue was taken away by Congress.

Not the Executive Branch. That is one of the keys here that is often over looked.

Section 223 of the Patriot Act

   *  You can no longer sue the government for “intentional” violations of the law, like you can sue everyone else. Instead, the violation has to be “willful,” a much higher standard.

This is the exact defense the DOJ of the Obama Administration is making, actually based on the laws of the lands passed through Congress.

   * Before, you could get a trial in front of a jury if you sued the government. Now, suits against the government are heard only by a judge.

The next one is particularly grand in a Rubenesque bureaucracy fashion:

   # Unlike with any other defendant, if you want to sue the federal government for illegal wiretapping you have to first go through an administrative procedure with the agency that did the wiretapping. That means, essentially, that you have to politely complain to the illegal wiretappers and tip them off to your legal strategy, and then wait for a while as they decide whether to do anything about it before you can sue them in court.

And last or not least, the legal pickle:

   # Before PATRIOT, in addition to being able to sue for money damages, you could sue for declaratory relief from a judge. For example, an Internet service provider could ask the court to declare that a particular type of wiretapping that the government wants to do on its network is illegal. One could also sue for an injunction from the court, ordering that any illegal wiretapping stop. PATRIOT section 223 signficantly reduced a judge’s ability to remedy unlawful surveillance, making it so you can only sue the government for money damages. This means, for example, that no one could sue the government to stop an ongoing illegal wiretap. At best, one could sue for the government to pay damages while the illegal tap continued!

All this can be found on the Electronic Frontier Foundation’s page about Section 223 of the Patriot Act:


If people want to get serious about this, we have to repeal the law first.

All the Obama administration’s DOJ is doing is following the law as they are on the books.

Nancy Pelosi wants them to sunset, end in December as per the law.

I say they get off their duffs and take care of a pressing issue the rabble is all roused about.

But it’s Congress who must repeal this part of the Patriot Act if you want any changes on illegal wiretapping.

Otherwise, you are getting made at the Obama Administration for following the rule of law, while claiming he is doing the exact opposite.

Because the laws on the books, are the law of the land, which is the rule of law.

Harass your congresscritter today.  


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  1. And as far as I can tell, there have been NO indications that the program has been shutdown. In fact the DOJ’s arguments FOR State Secrets indicate that it has been embraced and continued under Obama.


    No rest for the weird!

    I see no reason to lay down the pitchforks though! Just point them omnidirectionally these days and you will hit something pitchfork-worthy!

    • Edger on April 11, 2009 at 11:19 pm

    argued that the case should be dismissed

    …because information surrounding the program was a “state secret” and therefore couldn’t be litigated or discussed. It also [secondarily] proposed that the government was protected by “sovereign immunity” under federal wiretapping statutes and the Patriot Act

       In response to a question at Thursday’s press briefing, White House Press Secretary Robert Gibbs said that President Obama stands firmly behind a Justice Department brief filed last week which aims to have a civil liberties group’s lawsuit dismissed.

       He “absolutely does,” Gibbs said. “Obviously, these are programs that have been debated and discussed, but the President does support that viewpoint.”

    I don’t know of anything in the Patriot Act that required Holder’s DoJ to file that brief, nor do I know of anything in the Patriot Act that required Obama to support the filing of that brief.

  2. Not only am I not putting the pitchfork down, I’m adding a fifty spike banana clip to it after taking a look at THIS.

  3. I’m glad you pointed out the problems with the laws as they stand right now.  Hopefully, we will OVERCOME those laws by repealing them!

  4. to repeal the whole obscene Act. I want them to restore all the civil rights they, in cahoots with the Bushies, took away. Nancy was on TV literally blithering about how it was up to DOJ to go after the Bushies. I think pitch forks need to be nice and sharp and at hand until our rights which date back the the Magna Carta are restored. A state of war my ass, were always in a ‘state of war’ we declare war on everything from drugs, to some Podunk island called Granada and even a verb. Ask me all pols want more power and once ceded they are not about to give it back. How many times do we have to fight for rights established in 1215 and even earlier? They ought to bust up the spooks along with the zombie too big banks.      

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