State Secrets Defense Rejected In Wiretapping Case 269
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."
really? (Score:5, Insightful)
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.
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: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.
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.
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.
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.
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: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.
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.
Re:Is this the "charity" in question? (Score:5, Insightful)
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?
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.
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.
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.
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.
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.
Re:And I'd trust Bush more.,. (Score:3, Insightful)
They both give us a hundreds different brands of cereals to eat but only 2 political choices, how's that freedom?
The funny thing about that is that 50% of those brands of cereals tastes like sticks and twigs, but 100% of the political parties taste like sticks and twigs.
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.
Re:Fucking judge is a terroristic asshole. (Score:3, Insightful)
Did you bother to read the judge's logic as to how indefensible the claims of state secrets were? Or did you just dismiss the judge out of hand because you're a simple-minded brain-washed ex-military troll?
That need-to-know crap is just bullshit. Unless the agency in question can demonstrate the need for secrecy, then the documents in question should be made public. There needs to be an authority which can determine if there really are state secrets that shouldn't be exposed... and guess what? The judiciary IS that authority.
If anyone's an asshole, it's you -- for supporting an executive that need answer to no one.
*DAMN* I forgot not to feed the trolls...
Re:Yeah, Till he gets fired. (Score:3, Insightful)
Judges should only have one master - the law - especially the People's Supreme Law known as the State and U.S. Constitutions.
Judges shouldn't be influenced by other considerations like fear of losing their job if they make the wrong decision. Their only role should be to read and enforce the Laws w/o arm-twisting from above or below.
Re:IT would almost be funny... (Score:3, Insightful)
countries that have high standards of living, high literacy rates, free elections and judicial oversight of the government don't allow that
And those are the democratic underpinnings that seem to be under attack.
This article points out the struggle judicial oversight is having in the face of executive excesses. US election procedures are creaky, inconsistent, and prone to gaming. Literacy, particularly scientific literacy is often marginalized and disparaged here. I'm less worried about our falling standard of living as we are still pretty well off.
If these trends continue too far then the government won't allow that shit, it will require it.
Re:Well? (Score:3, Insightful)
Yes it does "creep" me out.
As Thomas Jefferson observed, "Citizens should not fear their government, but instead the government should fear the citizens, to hold it accountable." Or maybe it was James Madison. Or John Adams? I don't know; it was one of those highly intelligent guys from the Age of Enlightenment. They knew quite well that government could not be trusted, and had witnessed citizens randomly disappearing into prisons without trial.
It's a shame that in just two hundred years we've come full circle and returned to an era of disappearing citizens (like Jose Padilla). It's time to start reminding politicians that they should fear us, just like Jefferson stated.
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.
Re:really? (Score:4, Insightful)
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].
Re:Consider the litigant (Score:3, Insightful)
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.
Re:And I'd trust Bush more.,. (Score:3, Insightful)
All US brand cereals that are sold in Sweden taste like sugercoated suger. Is that the other 50%?
Probably. It seems that the cereal for kids are all sugar-coated sugar. When I was a kid, though, I loved Grape-Nuts (which have neither grapes nor nuts) when I could get my parents to buy them (being "healthy", they were more expensive than frosted flakes, and came in a much smaller box). Now that I spend my own money, I buy the generic brand version.
Re:really? (Score:3, Insightful)
You and the parent poster have both gone off the deep end, just at opposite ends. If you are certain that someone is "doing wrong", i.e. you have probable cause, they are forfeiting certain of their rights.
And what rights would those be, homeslice? If the police have PC to arrest you and they put you in holding, you lose freedom of movement, but that isn't a constitutional right. An innocent person has all of their rights intact until they're proven guilty, and even then, in prison, they retain a semblance of most of them. As a matter of principle, a prosecutor can send you up the river with full and damning evidence and at no time are any of your legal protections forfeit. They were designed for people under suspicion. If nobody was ever under suspicion then your probably wouldn't need a Bill of Rights.
I think you are confusing certain "rights," like and privacy with "Constitutional protections."
Re:Ok, let me get this straight... (Score:5, Insightful)
Re:Remember folks... (Score:4, Insightful)
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.
Re:Well? (Score:3, Insightful)
The persons who refused to obey that law should be charged with Constitutional treason.
You might want to actually read the Constitution and see how it defines treason before you go suggesting that refusing to obey a law constitutes treason.....
Once precedent has been set to deny one American citizen his rights
That precedent wasn't set. His case eventually wound it's way through the court system and the Government had to try him or let him go. He choose to accept a plea-bargain. Seems like it worked just fine in this case, albeit at the glacial pace of the judicial branch.
Re:And I'd trust Bush more.,. (Score:3, Insightful)
No, the people can limit the government. But it takes an informed people willing to get off their butts and stop it. Yeah it's difficult, maybe even impossible, but it's still worth attempting.
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.
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.
Re:Well? (Score:3, Insightful)
Re:Its good to see ... (Score:3, Insightful)
NYCL isn't a lawyer, he's a hero :)
(one of mine anyway)