Supreme Court Skips Amendment 4, Keeps Catch-22

The U.S. Supreme Court last week declined to hear a case to stop President Bush’s domestic warrantless wiretapping, and let stand a 2-1 Appeals Court ruling that threw out the case on a technicality — a catch-22.x20 The ACLU brought the case on behalf of some journalists, scholars and lawyers, who claim that the specter of the government listening in has impaired their communication with overseas sources and clients. In 2006, U.S. District Judge Anna Diggs Taylor ruled in their favor and ordered the wiretapping program stopped:x21

The Government appears to argue here that, … 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 powers not created by the Constitution. …

A catch-22 is a bureaucratic double-bind. The term comes from the title of a novel.x22 In Catch-22, the character Orr is a bomber pilot based in Italy during World War II. Orr is believed to be crazy. The rulebook says that a crazy person does not have to fly bombing missions. So Orr could ask not to fly. But, Catch-22 says that asking not to fly shows concern for one’s own safety, which is proof of sanity. So …

Orr would be crazy to fly more missions and sane if he didn’t, but if he was sane he had to fly them. If he flew them he was crazy and didn’t have to; but if he didn’t want to he was sane and had to.

The U.S. courts reason similarly: U.S. persons are being wiretapped without a warrant by the government. The Fourth Amendment says that a person cannot be wiretapped without a warrant. So persons can sue and stop the government from wiretapping them. But, Catch-22 says that only persons who can prove they are wiretapped can sue — yet a person cannot prove that, because the government keeps any such wiretap lists secret. So … If wiretapped persons sue to stop the wiretapping, they must prove they’re on a secret wiretap list, but they can’t prove it. If wiretapped persons don’t sue, then the government keeps wiretapping them.

While the lawsuit against the Bush regime has failed, lawsuits against AT&T and Verizon for aiding the government’s illegal spying are pending.x23 These lawsuits could reveal details of reports that the Bush regime tapped into telecom data switches and sucked up communications, not just of certain persons, but of everyone, and that it began illegal wiretapping, not after September 11, 2001, but in February 2001, shortly after taking office.x24 As the House now considers changes to the foreign intelligence surveillance law (FISA), Bush and House Republicans are pressing for retroactive immunity for telecoms — which would shut down the lawsuits.x25 But the House Democratic leadership has so far held firm against such immunity.


20 ‘Supreme Court rejects domestic wiretap appeal’ – by Anne Broache, C|Net, February 19, 2008


22 Catch-22 by Joseph Heller — borrow buy

23 ‘NSA Spying’ – Electronic Frontier Foundation

24 ‘Big Brother Bad Idea Still Breathing’ – The Paragraph, 2007-10-28 — source 23 source 24 source 25

25 ‘Republicans Shun Wiretap and Telecom Amnesty Compromise Meeting’ By Ryan Singel, Wired, February 21, 2008

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By Quinn Hungeski – Posted at G.N.N. &

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Calvin Leman
15 years ago

Here is a letter to my congressman (Mike Simpson) about FISA. The government should submit to being sued because of this alleged illegal activity.

February 22, 2008


Thank you for sharing your ideas about FISA in your February 19 letter to me.

You did not answer this question, which I sent to you on February 18: When FISA was found to be inadequate, why did Congress not amend FISA to accomplish the safety that the Protect America Act does, without affecting our right to privacy, as the 4th amendment does

It is the perception of the people that Congress is bickering about FISA, when the Congress should be fixing FISA.

Here is one way to fix FISA. The FISA court could issue a temporary permit to monitor email and telephone messages, with the provision that within, say 3 days, Mike McConnell, the National Intelligence Director, would report to the FISA court about what the agency had done. This provides oversight of National Intelligence and protects our 4th amendment rights.

I also asked you to consider this: If the question of telecom companies doing illegal searches while following government orders is an issue, then the government is just as liable for the illegal activity as the telecommunication companies are. The Congress could conclude that the Protect America Act is illegal and could submit to being sued because of this illegal activity.

For the Congress to insist on protection of telecommunication companies, as Mike McConnell has explained, so that the companies will continue to work with National Intelligence, is simply a political argument. The people are aware of the lobbying of the telecommunication companies. The people think that is why the Congress is protecting the companies. The government is trying to absolve itself of liability because of the alleged illegal parts of the Protect America Act by protecting the telecommunication companies. Both the government (Congress and/or the President) and the telecommunication companies should submit to being sued for these alleged illegal activities.

If the Protect America Act were in force when Martin Luther King was organizing marches, those marches may never have occurred.

The people do not trust their legislators. The disapproval of congress by the people has been about 70% for more than a year. Transparency in legislative activities can restore the trust of the people. The Congress does not have the trust of the people now.

Thank you for considering my ideas. Neither Larry Craig nor Mike Crapo do. I rely on you to help restore democracy.