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State Secrets Defense Rejected In Wiretapping Case
Posted by
kdawson
on Tue Jan 06, 2009 04:27 PM
from the come-out-into-the-light dept.
from the come-out-into-the-light dept.
knifeyspooney writes in with an Ars Technica report that a federal judge has issued a strong rebuke to government lawyers attempting to invoke the "state secrets" defense to quash a lawsuit over warrantless wiretapping. This is not the high-profile case the EFF is bringing against the NSA; instead the case is being pursued by an Islamic charity that knows it had been wiretapped. "At times, a note of irritation crept into [Judge] Walker's even, judicial language. At one point, he described the government's argument as 'without merit,' and characterized another as 'circular.' He also seemed impatient with the Justice Department's refusal to provide any classified documents addressing Al Haramain's specific claims for review in chambers. 'It appears... that defendants believe they can prevent the court from taking any action under 1806(f) by simply declining to act,' wrote Walker."
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really? (Score:5, Insightful)
Re:really? (Score:5, Funny)
George W. Bush:
Great president?
Or greatest president?
Ok, I'll put you down for "great'.
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Re: (Score:3, Informative)
Re:really? (Score:4, Insightful)
Parent
Is this the "charity" in question? (Score:5, Insightful)
http://en.wikipedia.org/wiki/Al-Haramein [wikipedia.org]
If so I can see why the government would want to wiretap them.
Re:Is this the "charity" in question? (Score:5, Insightful)
I can see why the government would want to wiretap them.
I can't see why the government should be able to avoid the audit requirements we've set down in law (both for criminal investigation, and separately for intelligence) regarding those wiretaps.
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Re:Is this the "charity" in question? (Score:5, Insightful)
If so I can see why the government would want to wiretap them.
Yeah? Well if the Feds had gone to the trouble to show a judge why they wanted to tap them, then they wouldn't be in this situation in the first place.
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Re:Is this the "charity" in question? (Score:5, Funny)
Why not? Wikipedia is infallible. It's not like just anyone can go and edit it.
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Re:Is this the "charity" in question? (Score:5, Funny)
Fed 2: "Aren't they that outfit who collects used clothing for inner-city youths?"
Fed 1: "Yeah, but you know. Their names sounds terroristy, plus how else are we going to justify our budget to the intelligence committee?
Fed 2: "Crap. Well, go make a Wikipedia page about them. Make it real scary. Lotsa bad guys, and make the UN hate 'em too. And put 'Al Qaeda' in there too, for good measure."
Fed 1: "Man, if the boss finds out about this..."
Fed 2: "Chill out, man. We're omnipotent. We'll just tell CNN and Fox News to stay quiet and everybody will forget about it as the next news cycle rolls around."
Fed 1: "Good plan, chief. What could possibly go wrong?"
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Re:Is this the "charity" in question? (Score:5, Insightful)
What if all the information they had about them was that lonely wikipedia page? I dont think the judge would consider it as evidence...
Too true, lol. Personally I've always maintained that their failure to seek warrants was ipso facto proof that they didn't have any decent evidence. Why would you take the risk of circumventing the law when the FISA court is ready and willing to retro-actively rubber stamp your warrant, unless you know you don't have enough to satisfy even the rubber stamper?
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Re:Is this the "charity" in question? (Score:5, Insightful)
You can't go all "24" on someone just because. Show your cards to a judge, then do whatever is necessary. It's about time some judge bitchsmacked them with the constitution.
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Re:Is this the "charity" in question? (Score:5, Insightful)
http://en.wikipedia.org/wiki/Al-Haramein [wikipedia.org]
If so I can see why the government would want to wiretap them.
Then they should get a warrant, even a bullshit retroactive FISA warrant.
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Re:Is this the "charity" in question? (Score:5, Insightful)
Parent
Re:Is this the "charity" in question? (Score:5, Insightful)
My question is, "How exactly did the charity KNOW they were wiretapped?" Sounds fishy to me.
Because the government told them that they were.
Why not get a warrant in the first place? Maybe there wasn't time.
If they didn't have time to spend two hours going to the courthouse and getting a judge to look at some papers, then we would have seen a whole lot more stuff blown up by now....
Maybe some of our judges can't be trusted.
Maybe some of our politicians can't be trusted. Maybe the DHS can't be trusted. You can "maybe" till you're blue in the face, but it's purely speculation. Maybe the sun will go nova tomorrow, and all this will be moot. It's a ridiculous argument, but it's theoretically possible. You're wanting to give up your freedoms to that theoretical possibility?
Maybe the evidence came from a source that had to remain anonymous. I'd guess the last "maybe".
And maybe that source is threatened now because of judicial interference in something they should stay out of.
You mean judicial interference in something they are legally required to be involved in?
Ever heard of sealed evidence? That's what they do when there's something that's so sensitive it can't go into general court files. The judge looks at it, decides the case based on it, then it gets locked in a vault. Nobody else has to see it. Nobody else can see it.
I'm sure if there was a source who's life was threatened, or something similar, if their anonymity was lost, then the evidence could be sealed.
As it is, these bureaucrats/politicians/DHS agents are no better than the schoolyard bully who beats kids up because he's "sure" that they had something to do with the snowball that got thrown at him.
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Its good to see ... (Score:5, Insightful)
Its good to see checks and balances, checking and balancing.
Just the fact that things are being reviewed does the constitution good.
Re:Its good to see ... (Score:5, Insightful)
One of the scarier things about the Cheney philosophy to governing was that he knew the judiciary was so slow. In a presidential term of four years, scandals at the very beginning just might work their way through by the end of the first term. Sometimes faster as in Watergate, but usually slower.
The executive also has the huge luxury of using tax dollars and the federal bureaucracy to lean on their political opponents. If they decide to do X, all it takes is an executive order and it's done. To overturn the decision, barring an act of congress, opponents have to undertake the lengthy and expensive litigation. And Cheney chose to litigate EVERYthing, using the entire weight of the federal bureaucracy, stonewalling at every turn, whereas the opponents would be forced to pick and choose court battles.
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National Insecurity (Score:5, Insightful)
The Justice Department has repeatedly sought to block the suit by invoking national security concerns.
I really don't feel secure from so much government secrecy, seems like it's their argument to everything for the past few years.
It's like saying Windows is secure because it's running secret proprietary code under the hood.
Re:National Insecurity (Score:5, Funny)
No, don't you see?!? Terrorists are a forgetful bunch. If the courts order the feds to turn over their wiretaps, the terrorists are going to read the conversations they've had and will enact their dastardly, forgotten plans!
"Oh man! I totally forgot Osama wanted me to blow up that bridge! Thank you, NSA, for reminding me!"
It is essential for national security that we not release the tapes so the terrorists aren't reminded! We have to keep their plans secret from them! /joke
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Re:National Insecurity (Score:5, Insightful)
Releasing the tapes gives the org (an alleged terrorist org) the opportunity to review their own security apparatus and make changes where applicable. Such as: If a conversation from a certain number released certain information at a certain point in time, it would allow the org to do several things:
1) Remove the communication device from service. (ie: get replacement hardware that has not been compromised.)
Bad for the US as intel is now harder to come by.
2) Determine if the person using said comm device is a traitor to their cause and kill them.
Bad for the US as intel is now harder to come by.
3) Use alternative means to deliver communiques.
Bad for the US as intel is now harder to come by.
See a theme anywhere in there?
I'm not saying the US did everything by the book - it should have. I'm just pointing out that 'reminding' terrorists isn't on the agenda or even part of the problem.
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Re:National Insecurity (Score:5, Funny)
You know... it's always disturbing to me when my jokes get modded insightful, or when my serious posts get modded funny.
Parent
Re:National Insecurity (Score:5, Funny)
Was that meant to be sad world-weariness or wry irony? You need to be clearer! I don't know whether to mis-moderate you Funny or Insightful!
I believe you meant "misundermoderate."
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Re: (Score:3)
Past few years ? It's the oldest trick in the book. Do whatever you want, classify the evidence and protect it by claiming that releasing the information poses risks to national security. By the time the documents finally are declassified you'll be long dead so who cares.
A 1990 episode of Star Trek TNG titled "The Hunted" touched on this issue.
Picard: "A matter of internal security: the age-old cry of the oppressor.
whos next (Score:5, Funny)
Re:whos next (Score:4, Interesting)
Parent
Ok, let me get this straight... (Score:5, Funny)
... so first we have a president whose second name is Hussein, and now Muslims are bringing freedom to America?
Re:Ok, let me get this straight... (Score:5, Funny)
I welcome Muslims to America, especially if they bring shawarmas and hashish.
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Re:Ok, let me get this straight... (Score:5, Interesting)
P.S.
Proposed Amendment (the XXVIII)
Any Person, regardless of rank or position, found by a State Supreme Court, State Legislature, or the Supreme Court of the United States to be committing acts in violation of this Constitution shall be charged with treason, with appropriate penalties as determined by the Congress.
*
* example: illegal wiretaps or searches without a judge's warrant
* all of the persons who committed that act would be charged
Why this proposed amendment? Because I'm tired of seeing government officials violate the Constitution and "get off" without any kind of consequences. There needs to be a deterrent, with corresponding fear of punishment, otherwise these bozos will just continue breaking Constitutional law again-and-again as if it didn't exist.
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Re:Ok, let me get this straight... (Score:5, Insightful)
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Remember folks... (Score:5, Interesting)
Remember all you folks who argued for greater presidential powers: Every power you gave Bush is a power Obama now has. And ditto for you Obama fans who will be arguing the same in the next few years for your guy. Eventually there will be someone you don't like in office. There's a very good reason for limiting the power of government: malchiks and nitwits frequently find their way into office.
Re: (Score:3, Interesting)
Re:Remember folks... (Score:5, Insightful)
I trust Obama with those powers a hell of a lot more than I trust Bush with them.
...but I trust the guy who'll replace the guy who'll replace Obama a lot less with them. So let's start now to limit those powers while we have someone in office who might (I said might) be willing to voluntarily relinquish some power to restore balance.
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Re:And I'd trust Bush more.,. (Score:4, Insightful)
No one should have the powers that Bush/Cheney seized or created. Not them, not Obama, (probably ;) not even me.
But if you can't tell the difference between how Republicans do wrong and how Democrats do wrong, you're not comparing Nixon/Reagan/Bush/Bush to Kennedy/Johnson/Carter/Clinton. You're saying something lazy and ignorant that equates extreme bad with merely not good.
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Re:Remember folks... (Score:4, Insightful)
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Re: (Score:3, Interesting)
Remember all you folks who argued for greater presidential powers: Every power you gave Bush is a power Obama now has. And ditto for you Obama fans who will be arguing the same in the next few years for your guy. Eventually there will be someone you don't like in office.
Well I'm an Obama fan because his own and his chosen DoJ team's stances have been strongly at odds with the Bush DoJ's "creative" interpretation of the Constitution. So even though the guy I like is in office, I'll be hoping for and arguing
Re:Remember folks... (Score:4, Insightful)
Right! Like the warrantless wiretaps, which Obama has done everything in his power to punish. Wait, what's that you say? He actually voted to help some of the perpetrators of that crime get away with it? Damn! Guess he's not really trying to help us out after all.
As The Who so insightfully said in 1971: "Meet the new boss, same as the old boss."
He threatened to filibuster, but couldn't get enough support from other dems, he voted for the amendment to remove the telecom immunity, but it failed, and finally when it was obvious that the bill was going to pass with the immunity provision intact, he voted for it to deny his opponents "Obama opposes fighting terror" ammunition. There was lots of other things in that bill, you see, and a tough election coming up. Unfortunate, as he said himself at the time, but it may have helped him get into a position where he can stack the DoJ with lawyers who vocally oppose expanding executive power, I think that's a net win.
So Bush and his lawyers actively supported the policy, Obama fought it but gave in to political reality. If that's your level of distinction, where that makes them "the same", well, there's no help for you. Go support whatever fringe candidate who you feel embraces all your ideals, will never get elected, and even if elected would never enact any useful policy due to an inability to compromise. I'll take practical, useful change that can actually gets done, thanks.
Not that I'm completely without unrealistic ideals... I still hold out hope than an Obama DoJ could go after the telcos since after all the bill only protected them from civil liability. I won't be holding my breath though.
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Re:Consider the litigant (Score:5, Insightful)
I think it has more to do with standing. These people know that they had been wiretapped (apparently the feds accidentally gave them a copy of the call logs, lol). The EFF doesn't know who has been wiretapped, I'm not sure they have direct proof that anybody has been, so their case is much more difficult.
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Re:Consider the litigant (Score:4, Insightful)
The cloud of suspicion, and the chilling effects that follow have affected everyone in the United States. We all have standing.
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Re:Consider the litigant (Score:4, Funny)
Yea, those Muslims keep getting preferential treatment these days. Damn them and their powerful lobby groups.
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Re:Well? (Score:5, Interesting)
Has even one political dissident been sent to GITMO?
How should we know? The DoD has never released an official complete list of names of those who are and who have been detained in GITMO, let alone a list of what they were detained for.
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Re:Well? (Score:4, Insightful)
Yeah, assuming politicians will abuse power is the exact same argument as assuming the existence of God. </sarcasm>
The entire concept of the US system of government (checks and balances, separation of powers, etc) is PREMISED on the assumption of politicians abusing power.
The FACT is, since 9/11, the US govt has been trying to assert the right to detain "enemy combatants" (which is vaguely defined) without legal recourse, or anyone even knowing about it. That is a cause of legitimate concern. "Gitmo'd" is just shorthand.
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Re:Well? (Score:5, Insightful)
You wouldn't know if a US citizen was sent to gitmo.
First - the military controls what names appear on their lists. Who is to say they couldn't send a US citizen to gitmo and list them under the name of a wanted Moroccan?
Second - the Bush(jr) administration is an easy target for conjecture since they have a history of erosion of civil liberties and are one of the most secretive administrations about national security matters.
Third - perhaps you haven't heard of extraordinary rendition. There is nothing to say the federal government couldn't 'disappear' someone if they wanted to. If you need any evidence, look at the Maher Arar case where a Canadian was intercepted at JFK international, rendered to Syria by the CIA and tortured in Syria. If the US had sufficient cause, they could do this to an American. If its done in secret and can't even be challenged in a court of law, how do you know the "sufficient cause" bar hasn't been lowered?
http://www.washingtonpost.com/wp-dyn/content/article/2007/10/19/AR2007101900835_pf.html [washingtonpost.com]
The law must be reviewed, executed and challenged under the light of day or it will slowly erode our liberty.
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Re: (Score:3, Funny)
You checked at Guantanamo on just why each of the prisoners there was imprisoned?
Dick Cheney, is that you?
Re:Well? (Score:5, Informative)
only enemy combatants detained overseas and their affiliates are in GITMO
http://en.wikipedia.org/wiki/Jose_Padilla_(prisoner) [wikipedia.org] They did try to send an American citizen, not in the military, arrested in the US, to Gitmo. He was held as an "enemy combatant" for 3.5 years before civil liberties groups got him a trial. I'm not saying I'm sad he is in jail (he was later found guilty), and I'm really not a conspiracy theorist, but it wouldn't be hard to believe there was at least one US citizen that they arrested in the US and sent to Gitmo without anyone noticing.
As it is, even with the press aware of this guy's situation, he sat in jail for 3.5 years without being charged with a crime. A US citizen, arrested in the US by the US government. That doesn't creep you out at all?
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Re:Well? (Score:5, Insightful)
The government doesn't fear the people because the people are all idiots. They vote based on what the government will "give" them. The only thing they fear is losing their government checks.
So, until this changes, or people get smart enough to ... you know ... stop voting based upon who is going to give them the most, (or alternatively taking from others more "rich"), it isn't going to change.
I don't fear wiretaps, I fear idiot constituents who are willing to screw me over to feel better about themselves.
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Re: (Score:3, Informative)
It would be even more funny if the right wing, who are doing a good job of making McCarthyism look tame, have the social progress evaporate as women are disenfranchised, then kicked out of their jobs, abortion is banned, homosexuals are stoned, writers are jailed, directors shot, dancers raped, just like, well, every other country where Islam has taken over.
Oh wait...the right wing has been doing that already. Go figure.
Re:IT would almost be funny... (Score:5, Insightful)
It would be even funnier if we fight to maintain the checks and balances built into our system of government. Then Islam can spread to everyone who wishes to practice it and none of the things you describe will happen.
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Re: (Score:3, Informative)
every other country where superstition has taken the place of logic and education.
Fixed that for you! I'd be happy to edit your newsletter if you have a copy available; your website is surprisingly free of updates.
Re:IT would almost be funny... (Score:5, Insightful)
If any religion could do that in a modern progressive democratic state, the fundies in the States would have done it already. And in fact, in the case of the stuff about abortion, gays and women you mentioned, the religious right have already tried.
The reason they failed is that countries that have high standards of living, high literacy rates, free elections and judicial oversight of the government don't allow that shit.
Find me an example of such a country that does the stuff you mentioned. Go on, just one. Iran? Syria? Afghanistan? Come on, those are backwaters. Yeah, some of them may have wealth (oil wealth in the hands of the few for the most part), but that isn't a good barometer for civil liberty.
None of them have free elections, none of them have governments that are answerable to the courts. Nor have they ever in most cases, and in fact, the times in the past where they've been freer than in the present, were also times when the religious loonies were sidelined by the moderates (Iran is a good example of this).
It wouldn't matter if every single religious nutjob in the States changed from Christian to Muslim. They'd be the same assholes they are now, and they'd fail just as miserably to bring about the theocracy your post details. It's not the faith that matters, it's the environment in which it's practised.
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Re:IT would almost be funny... (Score:4, Insightful)
Find me an example of such a country that does the stuff you mentioned. Go on, just one. Iran? Syria? Afghanistan? Come on, those are backwaters. Yeah, some of them may have wealth (oil wealth in the hands of the few for the most part), but that isn't a good barometer for civil liberty.
Take that one step further - religion has nothing to do with it, being a "backwater country" is the common theme, not religion. For example Rwanda - 90+% christian [wikipedia.org] or to a lesser extent Sri Lanka - 85%+ Buddhist and Hindu [wikipedia.org] and Burma - 89% Buddhist [wikipedia.org].
Parent
Re: (Score:3, Funny)
I assume this wasn't all invented by Shampoo by any chance?