### Author:  [@Bricker](https://boards.straightdope.com/u/Bricker)
#### Post date: [July 19, 2007, 6:34pm UTC](https://boards.straightdope.com/t/challenge-to-warrantless-surveillance-program-might-actually-get-its-day-in-court/412416/2 "2007-07-19T18:34:25Z")
[QUOTE=BrainGlutton]
Up to now, the problem has been that nobody challenging the legality of the program could establish legal standing to sue because they could not prove they **were** put under surveillance. That kind of information is **secret,** y’know. But in one case in Oregon, the plaintiffs claim to have actual evidence of warrantless surveillance. Story [here.](http://abcnews.go.com/TheLaw/story?id=3386890&page=1)
So, will this get to court? And what will be the outcome?
[/QUOTE]
In [This thread from 2006](http://boards.straightdope.com/sdmb/showthread.php?t=384456), I predicted that the district court, which had ruled the program unconstitutional, would be reversed by the Sixth Circuit. In fact, I placed a number of bets on it:
> [@Bricker](#):
>
> That seem a fair bet to you? You win if the Sixth Circuit affirms and SCOTUS denies cert, or if SCOTUS ultimately affirms. I win if the Sixth, either panel or en banc, reverses on TSP and SCOTUS denies cert, or if SCOTUS reverses.
**Hamlet, Billdo** and **Oakminster** all took me up on the bet, and on July 6th of this year, the Sixth Circuit made me proud.
Assuming these plaintiffs are found to have standing, I predict again that they will ultimately lose on the merits.
Care to make it interesting?
---
### Author:  [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)
#### Post date: [July 19, 2007, 6:46pm UTC](https://boards.straightdope.com/t/challenge-to-warrantless-surveillance-program-might-actually-get-its-day-in-court/412416/3 "2007-07-19T18:46:54Z")
[QUOTE=Bricker]
Assuming these plaintiffs are found to have standing, I predict again that they will ultimately lose on the merits.
Care to make it interesting?
[/QUOTE]
Never mind **bets.** Care to make an **argument?** A legal argument?
---
### Author:  [@Bricker](https://boards.straightdope.com/u/Bricker)
#### Post date: [July 19, 2007, 7:08pm UTC](https://boards.straightdope.com/t/challenge-to-warrantless-surveillance-program-might-actually-get-its-day-in-court/412416/4 "2007-07-19T19:08:10Z")
[QUOTE=BrainGlutton]
Never mind **bets.** Care to make an **argument?** A legal argument?
[/QUOTE]
Sure. I provided an outline of what I contended the correct legal analysis was in the linked thread.
However, to provide more succinct detail: the plaintiffs in the case mentioned in the earlier thread claimed that the surveillance program violated the First and Fourth Amendments, the Separation of Powers Doctrine, the Administrative Procedures Act, Title III of the Omnibus Crime Control and Safe Streets Act, and the Foreign Intelligence Surveillance Act.
Each of these claims is either unavailing on its face, or faces certain doom at trial if the government invokes the State Secrets Doctrine to bar the discovery or admission of evidence that relates to national security.
To save myself typing, perhaps you could identify which of the plaintiff’s claims you feel has merit, or identify another claim that was not advanced by the plaintiffs in the instant case that you believe would prevail, and I can address a specific legal argument to that claim. I don’t want, for example, to type three paragraphs rebutting the Title III claim if you concede up front that it has no merit.
---
### Author:  [@vibrotronica](https://boards.straightdope.com/u/vibrotronica)
#### Post date: [July 19, 2007, 7:47pm UTC](https://boards.straightdope.com/t/challenge-to-warrantless-surveillance-program-might-actually-get-its-day-in-court/412416/5 "2007-07-19T19:47:46Z")
So the answer is “No, I don’t want to make a legal argument.”
---
### Author:  [@Bricker](https://boards.straightdope.com/u/Bricker)
#### Post date: [July 19, 2007, 8:06pm UTC](https://boards.straightdope.com/t/challenge-to-warrantless-surveillance-program-might-actually-get-its-day-in-court/412416/6 "2007-07-19T20:06:27Z")
[QUOTE=vibrotronica]
So the answer is “No, I don’t want to make a legal argument.”
[/QUOTE]
No.
Read again, carefully.
1. I provided the outline of a legal argument in the linked thread.
2. Here it is in abbreviated form:
> [@](#):
>
> The plaintiffs in the case mentioned in the earlier thread claimed that the surveillance program violated the First and Fourth Amendments, the Separation of Powers Doctrine, the Administrative Procedures Act, Title III of the Omnibus Crime Control and Safe Streets Act, and the Foreign Intelligence Surveillance Act.
>
> Each of these claims is either unavailing on its face, or faces certain doom at trial if the government invokes the State Secrets Doctrine to bar the discovery or admission of evidence that relates to national security.
THAT is my legal argument.
What do you find insufficient about it?
---
### Author:  [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)
#### Post date: [July 19, 2007, 10:09pm UTC](https://boards.straightdope.com/t/challenge-to-warrantless-surveillance-program-might-actually-get-its-day-in-court/412416/7 "2007-07-19T22:09:04Z")
[QUOTE=Bricker]
Sure. I provided an outline of what I contended the correct legal analysis was in the linked thread.
However, to provide more succinct detail: the plaintiffs in the case mentioned in the earlier thread claimed that the surveillance program violated the First and Fourth Amendments, the Separation of Powers Doctrine, the Administrative Procedures Act, Title III of the Omnibus Crime Control and Safe Streets Act, and the Foreign Intelligence Surveillance Act.
Each of these claims is either unavailing on its face, or faces certain doom at trial if the government invokes the State Secrets Doctrine to bar the discovery or admission of evidence that relates to national security.
[/quote]
If the latter happens, it will **not** be an instance of the case being decided “on its merits” for purposes of this discussion. That is, we still will have no definitive ruling on whether the surveillance program is lawful or unlawful.
I reviewed the earlier thread, and your only legal arguments presented therein are:
> [@Bricker](#):
>
> Hmmm. I think she’s right on the standing issue, right on the data mining issue, and has an even-money chance of being reversed on the TSP validity claim.
>
> I was originally going to offer even money that she’ll be reversed, either by the Sixth Circuit (possibly en banc) or by the Supremes on the application of state secrets to the TSP.
And:
> [@Bricker](#):
>
> I think she should be reversed. The government’s public disclosures with respect to TSP were not made voluntarily; they flowed from the unauthorized disclosure of the program. Such concessions should not be used to vitiate the state secrets privilege.
Neither of which clearly addresses the legality of the program as such.
> [@Bricker](#):
>
> To save myself typing, perhaps you could identify which of the plaintiff’s claims you feel has merit, or identify another claim that was not advanced by the plaintiffs in the instant case that you believe would prevail, and I can address a specific legal argument to that claim. I don’t want, for example, to type three paragraphs rebutting the Title III claim if you concede up front that it has no merit.
I’ve reviewed the story linked in the OP and it says nothing about what theories the plaintiffs argue as to the surveillance program’s legality; it discusses only evidentiary matters, i.e., whether the recollections of plaintiffs’ counsel can be used to prove the existence and content of the documents in question.
> [@](#):
>
> The government has gone to uncommon lengths to protect the secrecy of the surveillance program, both in Al-Haramain and in other cases. It persuaded the trial judge in the Al-Haramain case to place the secret document in a Secure Compartmentalized Information Facility at the FBI office in Portland.
>
> The government is now trying to prevent the court from using Al-Haramain’s lawyers’ memories of the document as evidence that they were put under warrantless surveillance.
>
> “The level of secrecy in this case strikes me as extraordinary,” said Nancy Marder, a Chicago-Kent College of Law professor who specializes in litigation secrecy. “It has sort of a Kafkaesque air to it. You can’t see certain documents. You can’t recall certain documents, You can’t use the documents that might exist.”
>
> Justice Department lawyers declined to comment on the case. A department spokesman referred questions to the government’s court filings, which say that the court papers in the case contain top secret “sensitive compartmented information.” That information requires special procedures to protect it, the government argues.
>
> \
>
> **Intimidation?**
>
> Eisenberg said that a few weeks after the case was filed, government lawyers called to say FBI agents were on their way to the court house to take possession of the document from the judge.
>
> Eventually, after Judge Garr King balked, the document was placed in a Secure Compartmentalized Information Facility at the FBI office in Portland.
>
> King ultimately ruled that Al-Haramain’s lawyers could not see the document again, but he allowed them to file affidavits describing their recollections of it. Those memories could be enough evidence to show that the plaintiffs were under surveillance and to allow the courts to decide whether the program is unconstitutional.
>
> Eisenberg said the government then told him that he was violating CIA directives by discussing the document in court filings. “It’s been a game of intimidation,” Eisenberg said.
>
> Justice Department lawyers declined to comment on the case. A spokesman referred questions to the government’s court filings.
>
> **State Secrets**
> When the 9th Circuit hears the case next month, it will have to decide whether the state secrets privilege, which allows the government to stop courts from hearing military and state secrets, prevents Al-Haramain’s lawyers from even using their recollections of the secret document to show that they have standing to sue.
>
> If the government prevails, the case will be dismissed.
>
> In court filings, the government argues that the case cannot go to trial without forcing the government to confirm or deny whether Belew and Ghafoor were spied on — a fact, the government contends, that could jeopardize national security. The Justice Department also says the subject matter of the case is a state secret that must be kept out of public view.
>
> A ruling that Al-Haramain is able to sue, the government argues, would itself disclose classified information because it would reveal that the plaintiffs were subject to surveillance under the spying program.
>
> Bradley called dismissing the case because of the state secrets privilege “drastic.” “They’re trying to disqualify any court from reviewing the legality of the program,” he said.
>
> Eisenberg agreed.
>
> “The document is not secret anymore,” he said. “They disclosed it to the very people who were being surveilled.”
Kafkaesque indeed. But let’s leave all that aside. What legal arguments do you have to offer that **the surveillance program is lawful?** That’s the only issue on which I, for one, would be willing to bet a dollar (but probably not even a dollar; I rarely bet on anything).
---
### Author:  [@Bricker](https://boards.straightdope.com/u/Bricker)
#### Post date: [July 19, 2007, 10:35pm UTC](https://boards.straightdope.com/t/challenge-to-warrantless-surveillance-program-might-actually-get-its-day-in-court/412416/8 "2007-07-19T22:35:38Z")
[QUOTE=BrainGlutton]
What legal arguments do you have to offer that **the surveillance program is lawful?** That’s the only issue on which I, for one, would be willing to bet a dollar (but probably not even a dollar; I rarely bet on anything).
[/QUOTE]
Other way around. If you contend something is UNlawful, you must point to a law that is purportedly violated by the conduct.
As I said in post #4 above:
> [@](#):
>
> …the plaintiffs in the case mentioned in the earlier thread claimed that the surveillance program violated the First and Fourth Amendments, the Separation of Powers Doctrine, the Administrative Procedures Act, Title III of the Omnibus Crime Control and Safe Streets Act, and the Foreign Intelligence Surveillance Act.
The earlier plaintiffs made those specific claims. Are you adopting those claims _in toto_? Are you pushing only one of them? Do you have some other grounds, not relied upon by the ealrier plaintiffs, to contend that the program is illegal? What?
My response to _What legal arguments do you have to offer that the surveillance program is lawful?_ is: it violates no laws. If you say it does, it’s up to you to point out those laws. and then it’s up to me to show why the program does not violate those specific laws.
---
### Author:  [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)
#### Post date: [July 19, 2007, 11:16pm UTC](https://boards.straightdope.com/t/challenge-to-warrantless-surveillance-program-might-actually-get-its-day-in-court/412416/9 "2007-07-19T23:16:11Z")
[QUOTE=Bricker]
Other way around. If you contend something is UNlawful, you must point to a law that is purportedly violated by the conduct.
[/QUOTE]
Let’s take it as assumed, WRT to the legality of the program as opposed to the plaintiffs’ standing to sue, that I agree with Judge Anna Diggs Taylor’s [opinion](http://i.a.cnn.net/cnn/2006/images/08/17/nsa.lawsuit.pdf) (pdf file) in [ACLU v. NSA:](http://en.wikipedia.org/wiki/ACLU_v._NSA)
> [@](#):
>
> Judge Taylor wrote a 44 page, 11 part opinion in which she examined the defendant’s claim over state secrets, standing, and the President’s war time claim. Judge Taylor found that the NSA surveillance Program violated statutory law in regard to the FISA. Furthermore, she concluded that the NSA program violated the constitution in regard to the First Amendment, Fourth Amendment, and Separation of powers Doctrine. Judge Taylor stayed her own opinion, preventing it from taking effect, pending a September 7 hearing.
>
> Here are some excerpts from her opinion:[4]
>
> “ [pp.23-24] \*t is important to note that if the court were to deny standing based on the unsubstantiated minor distinctions drawn by Defendants, the President’s actions in warrantless wiretapping, in contravention of FISA, Title II, and the First and Fourth amendments, would be immunized from judicial scrutiny. It was never the intent of the Framers to give the President such unfettered control, particularly where his actions blatantly disregard the parameters clearly enumerated in the Bill of Rights. The three separate branches of government were developed as a check and balance for one another. It is within the court’s duty to ensure that power is never condensed into a single branch of government. ”
>
> “ [p.33] The President of the United States, a creature of the same Constitution which gave us these Amendments, has undisputedly violated the Fourth in failing to procure judicial orders as required by FISA, and accordingly has violated the First Amendment Rights of these Plaintiffs as well. ”
>
> “ [p.40] The Government appears to argue here that, pursuant to the penumbra of Constitutional language in Article II, and particularly because the President is designated Commander in Chief of the Army and Navy, he has been granted the inherent power to violate not only the laws of the Congress but the First and Fourth Amendments of the Constitution, itself.
>
> We must first note that the Office of the Chief Executive has itself been created, with its powers, by the Constitution. There are no hereditary Kings in America and no power not created by the Constitution. So all “inherent power” must derive from that Constitution.
Tell us what flaws you see in her reasoning and/or her conclusions.
---
### Author:  [@Bricker](https://boards.straightdope.com/u/Bricker)
#### Post date: [July 20, 2007, 1:43am UTC](https://boards.straightdope.com/t/challenge-to-warrantless-surveillance-program-might-actually-get-its-day-in-court/412416/10 "2007-07-20T01:43:35Z")
[QUOTE=BrainGlutton]
Let’s take it as assumed, WRT to the legality of the program as opposed to the plaintiffs’ standing to sue, that I agree with Judge Anna Diggs Taylor’s [opinion](http://i.a.cnn.net/cnn/2006/images/08/17/nsa.lawsuit.pdf) (pdf file) in [ACLU v. NSA:](http://en.wikipedia.org/wiki/ACLU_v._NSA)
Tell us what flaws you see in her reasoning and/or her conclusions.
[/QUOTE]
It’s unclear to me why, if you wish to limit the discussion to the legality of the program as opposed to the standing to sue issue, your first quote is in support of the standing issue. But I will take you at your word, and assume that you don’t wish to discuss standing.
> [@](#):
>
> The President of the United States, a creature of the same Constitution which gave us these Amendments, has undisputedly violated the Fourth in failing to procure judicial orders as required by FISA, and accordingly has violated the First Amendment Rights of these Plaintiffs as well.
The plaintiffs complain that their confidential communications are being intercepted constitutes a violation of the First Amendment. I am unaware of any precedent for such a claim. First Amendment claims go to freedom of expression, and the very effort to keep their communcations secret is fatal to a claim that the First Amendment is implicated. See _Gordon v. Warren Consolidated Board of Education_, 706 F.2d 778, 781 n.3 (6th Cir. 1983) (Holding that surveillance, even if it violates the Fourth Amendment, does not violate First Amendment rights, even though it may be directed at communicative or associative activities.)
The Fourh Amendment claim is different. The remedy for Fourth Amendment violations is typically suppression of the evidence gained in derogation of the Amendment. However, Fourth Amendment rights are personal, and may not be asserted vicariously. If police conduct a warrantless search of my home and find evidence that implicates you in a crime, you cannot seek to exclude that evidence on Fourth Amendment grounds, because your Fourth Amendment rights were not violated. See _Alderman v. United States_, 394 U.S. 165 (1969).
> [@](#):
>
> The Government appears to argue here that, pursuant to the penumbra of Constitutional language in Article II, and particularly because the President is designated Commander in Chief of the Army and Navy, he has been granted the inherent power to violate not only the laws of the Congress but the First and Fourth Amendments of the Constitution, itself.
>
> We must first note that the Office of the Chief Executive has itself been created, with its powers, by the Constitution. There are no hereditary Kings in America and no power not created by the Constitution. So all “inherent power” must derive from that Constitution.
The President’s claimed power does derive from the Constitution. The President, like Congress and the courts, must be assumed to have the power to carry out his responsibilities under the Constitution. His conduct cannot violate the First and Fourth Amendments, yes, but no one has shown that they do, as I explained in the previous paragraphs.
---
### Author:  [@Bricker](https://boards.straightdope.com/u/Bricker)
#### Post date: [July 20, 2007, 4:20pm UTC](https://boards.straightdope.com/t/challenge-to-warrantless-surveillance-program-might-actually-get-its-day-in-court/412416/11 "2007-07-20T16:20:59Z")
PREVIOUS POSTERS, IN CHORUS: _Oh, THOSE legal arguments!_
(THEY ALL SUDDENLY FIND OTHER THREADS MUCH MORE INTERESTING)
EXEUNT, and CURTAIN.
---
### Author:  [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)
#### Post date: [August 18, 2007, 6:53pm UTC](https://boards.straightdope.com/t/challenge-to-warrantless-surveillance-program-might-actually-get-its-day-in-court/412416/12 "2007-08-18T18:53:31Z")
[Update: Minute-by-minute account of the appeal hearing.](http://blog.wired.com/27bstroke6/2007/08/nsa-hearing-ope.html)
> [@](#):
>
> 4:25pm PDT
>
> Judge McKeown: “I feel like I’m in _Alice and Wonderland._”
>
> Eisenberg: “I feel like I’m in _Alice in Wonderland,_ too.”
---
### Author:  [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)
#### Post date: [August 18, 2007, 7:02pm UTC](https://boards.straightdope.com/t/challenge-to-warrantless-surveillance-program-might-actually-get-its-day-in-court/412416/13 "2007-08-18T19:02:36Z")
[QUOTE=Bricker]
The Fourh Amendment claim is different. The remedy for Fourth Amendment violations is typically suppression of the evidence gained in derogation of the Amendment. However, Fourth Amendment rights are personal, and may not be asserted vicariously. If police conduct a warrantless search of my home and find evidence that implicates you in a crime, you cannot seek to exclude that evidence on Fourth Amendment grounds, because your Fourth Amendment rights were not violated. See _Alderman v. United States_, 394 U.S. 165 (1969).
[/QUOTE]
But, can **legislation** (let alone executive policy) that authorizes routine violations of the Fourth Amendment be constitutional?
---
### Author:  [@E-Sabbath](https://boards.straightdope.com/u/E-Sabbath)
#### Post date: [August 18, 2007, 7:26pm UTC](https://boards.straightdope.com/t/challenge-to-warrantless-surveillance-program-might-actually-get-its-day-in-court/412416/14 "2007-08-18T19:26:42Z")
Typically, of course, is not always. And Bricker, don’t say we’re leaving… some of us do like to step in when the legal arguments come up. This is quite fascinating stuff.
---
### Author:  [@Bricker](https://boards.straightdope.com/u/Bricker)
#### Post date: [August 21, 2007, 12:35am UTC](https://boards.straightdope.com/t/challenge-to-warrantless-surveillance-program-might-actually-get-its-day-in-court/412416/15 "2007-08-21T00:35:18Z")
[QUOTE=E-Sabbath]
Typically, of course, is not always. And Bricker, don’t say we’re leaving… some of us do like to step in when the legal arguments come up. This is quite fascinating stuff.
[/QUOTE]
Sorry. But it did take you a month to respond; surely you can see why I might have lost hope. 🙂 And **vibotronica** , after boldly declaring that I was saying:
> [@vicotronica](#):
>
> So the answer is “No, I don’t want to make a legal argument.”
seemed to have completely vanished from the thread after seeing the argument in question.
I mean, I know I’m good, but that was fantastic even for me.
> [@](#):
>
> But, can legislation (let alone executive policy) that authorizes routine violations of the Fourth Amendment be constitutional?
I don’t know, although I doubt it. But no one has established any particular violations of the Fourth Amendment.
**BrainGlutton** , do you mind my asking what area of law you practice?
---
### Author:  [@Hamlet](https://boards.straightdope.com/u/Hamlet)
#### Post date: [August 21, 2007, 12:49am UTC](https://boards.straightdope.com/t/challenge-to-warrantless-surveillance-program-might-actually-get-its-day-in-court/412416/16 "2007-08-21T00:49:14Z")
[QUOTE=Bricker]
**Hamlet, Billdo** and **Oakminster** all took me up on the bet, and on July 6th of this year, the Sixth Circuit made me proud.
Assuming these plaintiffs are found to have standing, I predict again that they will ultimately lose on the merits.
Care to make it interesting?
[/QUOTE]
Since our wager ended in a push (the standing issue is a cop out to me), I’ll take the same action in this case. If the court gets to the merits and rules against the administration, I get a nice bottle of wine on you. And, if the court gets to the merits and rules for the President, you get a nice bottle of wine on me, and the Constitution gets crumpled up and thrown in the wastebasket. If the court rules on the standing or state secrets without getting to the merits, it’s another push.
Is it a bet?
---
### Author:  [@elucidator](https://boards.straightdope.com/u/elucidator)
#### Post date: [August 21, 2007, 12:58am UTC](https://boards.straightdope.com/t/challenge-to-warrantless-surveillance-program-might-actually-get-its-day-in-court/412416/17 "2007-08-21T00:58:14Z")
[QUOTE=Bricker]
…I don’t know, although I doubt it. But no one has established any particular violations of the Fourth Amendment…
[/QUOTE]
And you find this reassuring? Given the Bushiviks spotless reputation? For transparency and candor?
---
### Author:  [@Hamlet](https://boards.straightdope.com/u/Hamlet)
#### Post date: [August 21, 2007, 1:01am UTC](https://boards.straightdope.com/t/challenge-to-warrantless-surveillance-program-might-actually-get-its-day-in-court/412416/18 "2007-08-21T01:01:42Z")
[QUOTE=Bricker]
The plaintiffs complain that their confidential communications are being intercepted constitutes a violation of the First Amendment. I am unaware of any precedent for such a claim. First Amendment claims go to freedom of expression, and the very effort to keep their communcations secret is fatal to a claim that the First Amendment is implicated. See _Gordon v. Warren Consolidated Board of Education_, 706 F.2d 778, 781 n.3 (6th Cir. 1983) (Holding that surveillance, even if it violates the Fourth Amendment, does not violate First Amendment rights, even though it may be directed at communicative or associative activities.)
[/quote]
I was unmoved by Judge Taylor’s First Amendment reasoning. Although I can see the “chilling effect” on free speech that the TSP has, I’m unsure it would amount to a Constitutional violation. Clearly, that part of her opinion was the weakest. Considering I found the entirety of her opinion to be poorly reasoned and poorly written, that’s saying something.
> [@Bricker](#):
>
> The Fourh Amendment claim is different. The remedy for Fourth Amendment violations is typically suppression of the evidence gained in derogation of the Amendment. However, Fourth Amendment rights are personal, and may not be asserted vicariously. If police conduct a warrantless search of my home and find evidence that implicates you in a crime, you cannot seek to exclude that evidence on Fourth Amendment grounds, because your Fourth Amendment rights were not violated. See _Alderman v. United States_, 394 U.S. 165 (1969).
That’s more akin to the standing issue than the merits of the argument. I think it’s pretty clear that, if the government is intercepting communications of a US citizen without a warrant, it violates the 4th Amendment. There is certainly room to argue that there is no reasonable expectation of privacy in international calls, or that intercepting international calls is akin to a “border search”, but, all in all, I think those arguments are unpersuasive. I also think your “remedy” issue is a red herring, the violation occurs when the communication is intercepted, regardless of whether or not it is ever used in court.
> [@Bricker](#):
>
> The President’s claimed power does derive from the Constitution. The President, like Congress and the courts, must be assumed to have the power to carry out his responsibilities under the Constitution. His conduct cannot violate the First and Fourth Amendments, yes, but no one has shown that they do, as I explained in the previous paragraphs.
I have gone over the NSA wiretapping program’s legality and constitutionality in many threads here and elsewhere. I am completely convinced that, from what we know, this adminstration has broken the law, without repurcussions, for 5 years, and, likely, has violated the Constitution. I, and a majority of legal scholars, have found the two legal arguments the DOJ has made on the merits (that the AUMF authorized it and that FISA is unconstitutional) are utterly laughable, not to mention contemptible.
And, yes, I’m still pissed our spineless Congress hasn’t done dick to stop it, and, instead, scrapped the law. Goddamnn cowards.
---
### Author:  [@elucidator](https://boards.straightdope.com/u/elucidator)
#### Post date: [August 21, 2007, 1:06am UTC](https://boards.straightdope.com/t/challenge-to-warrantless-surveillance-program-might-actually-get-its-day-in-court/412416/19 "2007-08-21T01:06:51Z")
[QUOTE=Hamlet]
…and a majority of legal scholars…
[/QUOTE]
Please cite. It would make my day.
---
### Author:  [@Hamlet](https://boards.straightdope.com/u/Hamlet)
#### Post date: [August 21, 2007, 1:09am UTC](https://boards.straightdope.com/t/challenge-to-warrantless-surveillance-program-might-actually-get-its-day-in-court/412416/20 "2007-08-21T01:09:11Z")
"The government is now trying to prevent the court from using Al-Haramain’s lawyers’ memories of the document as evidence that they were put under warrantless surveillance.
“The level of secrecy in this case strikes me as extraordinary,” said Nancy Marder, a Chicago-Kent College of Law professor who specializes in litigation secrecy. “It has sort of a Kafkaesque air to it. You can’t see certain documents. You can’t recall certain documents, You can’t use the documents that might exist.”
These quotes are, to me, one of the weirdest parts of the case. Not only did the attorney’s have to give back the document that shows the plaintiff was surveilled, but now they want to argue that they can’t even testify about their memory of the document that the Justice Department still has. The fact our government is arguing that, although the fact of the surveillance is uncontested, it is too secret to talk about is truly scary to me.
[Next page](https://boards.straightdope.com/t/challenge-to-warrantless-surveillance-program-might-actually-get-its-day-in-court/412416.md?page=2)