That "Sovereign immunity" again

[only2percent]

August 7, 2012 | By Cindy Cohn
9th Circuit Dismisses Al Haramain Case


"Today the Ninth Circuit Court of Appeals dismissed the warrantless wiretapping case, Al Haramain Islamic Foundation v. Obama, on the technical legal basis known as sovereign immunity.

Essentially, on a complex statutory analysis, the court ruled that the only claim left in the case, for money damages under 50 U.S.C. section 1810, could not be brought against the government itself, and instead could only be brought against government officials in their individual capacity. The court then ruled that the specific claims made against an official in his individual capacity, FBI Director Mueller, were not sufficient and could not be amended.

While the analysis is complex, the upshot is clear and very troubling.
First, the Court ruled that Congress in passing this section of FISA created a cramped statute that, at least in section 1810, only allows a claim for redress if the government uses the information it illegally gathers, and creates no a remedy against the government for the unlawful collection of information. Apparently, when it came to granting a legal claim for damages, Congress intended to allow the government to do as much wiretapping in violation of the law as it wanted to, and only allow individuals to sue for use of the information illegally collected. It seems unlikely that the American people believe that the line should be drawn in this strange way.

Additionally, the ruling certainly does not exonerate the government. To the contrary, the best that they could say is that they they got off on a pure technicality of Congressional drafting. There is nothing in this opinion, or in the whole course of this litigation, that undermines the basic revelation: that President Bush authorized the warrantless illegal and unconstitutional wiretapping of the two attorneys helping this accused -- and now defunct -- charity in their lawful, privileged communications with their client. No one should take this as a vindication of the Bush-era policies (or Obama's continuation of them).

Finally, this ruling will have little, if any, affect on the EFF's ongoing litigation Jewel v. NSA, where we seek to stop the ongoing surveillance of millions of innocent Americans, also without proper warrants or other judicial oversight. Jewel has many causes of action, not just 50 U.S.C. section 1810, and it seeks an injunction to stop ongoing behavior, not just monetary damages for past acts. So while we don't agree with the Ninth Circuit's ruling here, it will not prove a roadblock to our efforts to stop the spying. We've moved for a ruling in the Jewel case that FISA preempts the state secret privilege and hope to have that motion heard by the District Court in the fall."


www.eff.org/deeplinks/2012/08/9th-circuit-dismisses-al-haramain-case
www.eff.org/sites/default/files/11-15468_Documents%281%29_0.pdf

NO REDRESS AGAINST SOVEREIGN

At least, you know the name of the looters now. Do not help them grow in power!




"The State itself is ultimate.
There is no law higher than the state.
There is no appeal against it."

[only2percent]

What IS "government"?

[only2percent]

Posted by bionic mosquito on 11/08/12 11:03 AM

"DB: We truly have gotten to the point, long ago actually, where anything that can make it into law BECOMES the law. For millennia this was not the case. Natural law was OBSERVABLE and what man proposed hewed to natural law or was discarded. This was the basic tenet of original common law.

DB (from "common law" pop-up): The English law of Wales and England preceded British Common Law and is still practiced in those countries. The oldest written law that's still in force is the Distress Act, which is part of the 1267 Statute of Marlborough. Three sections of the Magna Carta, which was originally signed in 1215, still play a large part in English Law.

BM: Coincidentally, I made a similar comment in Tibor's column of today, so forgive me for posting the same link here:

Click to view link

Through this link, there are five posts on this subject. For those interested, they would read better from oldest to newest. These are based on a book by Fritz Kern, 'Gottesgnadentum und Widerstandsrecht im Frueheren Mittelalter', ('Kingship and Law in the Middle Ages').

There is an older common law, the Germanic law of the Mediaeval ages. A couple of excerpts from the posts, especially if you do not want to read further:

'For us law needs only one attribute in order to give it validity; it must, directly or indirectly, be sanctioned by the State. But in the Middle Ages, different attributes altogether were essential; mediaeval law must be 'old' law and must be 'good' law….If law were not old and good law, it was not law at all, even though it were formally enacted by the State.'

Regarding a written constitution as a check on the king's power:

'The [mediaeval] monarch was subject not to a specific constitutional check, but to the law in general, which is all-powerful and almost boundless in its lack of definition; he is limited by this law and bound to this law.

'From the point of view of constitutional machinery, the control exercised in this way [via mediaeval law] by the law will presumably be very incomplete and insecure - the very breadth of the mediaeval idea of law allows us to guess this. But in theory there resulted a complete control of the monarch, a subjection to law so thorough that political considerations and reason of State were excluded and out of the question.'

In other words, the written constitution empowered the king, as opposed to keeping him in check - the Magna Carta could be viewed as a step away from freedom and toward monarchical power. With mediaeval law, the king could be vetoed by any one of the lords in his domain - any single lord, when demonstrating a reliance on 'old' and 'good' law, could stop a king from adventurism, and even the king had to respect this action as his duty was to this old and good law.

There was no concept of 'sovereignty' - the king was not sovereign, nor the individual people. If any 'thing' was to be seen as sovereign, it was the law - the old, good law.

In any case, for those with interest, there is much more in the above-referenced post. Otherwise, enough said."

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