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State Secrets Defense Rejected In Wiretapping Case 269

Posted by kdawson
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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State Secrets Defense Rejected In Wiretapping Case

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  • really? (Score:5, Insightful)

    by n3tcat (664243) on Tuesday January 06, 2009 @05:28PM (#26349119) Homepage
    fucking finally
    • .. or is he an elected judge?

      • Re: (Score:3, Informative)

        by DustyShadow (691635)
        federal judges are appointed, not elected
        • Re: (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.

          • Judges also have to interpret laws that are not clear. It is impossible for their personal beliefs/knowledge to affect those interpretations. Court rulings are called "opinions" for a reason. Federal judges have life terms and as far as I know, cannot be removed unless they commit a crime.
          • by k1e0x (1040314)

            The law is not always right, and its not always just. (Segregation and the internment of Japanese was law, MLK said it is your duty to break unjust laws.) Just because it's THE LAW, doesn't mean it right.

            That being said, it's merely wishful thinking judges master is the law. State Judges work for the state and have a vested interest in the state, Federal Judges, same thing.. worse yet.. they have a, secret language (legalese) and a little club (the bar). If someone in the club goes against the club they can

  • by chaboud (231590)

    It appears... that defendants believe they can prevent the court from taking any action under 1806(f) by simply declining to act,' wrote Walker

    Unless he's willing to put the attorneys in jail for failure to comply (and end up gitmo'd), there's not a lot that he can do.

    I still have my fingers crossed, though.

    • Re: (Score:2, Informative)

      by oodaloop (1229816)

      Unless he's willing to put the attorneys in jail for failure to comply (and end up gitmo'd)

      I'm really tired of seeing this crap. Has even one political dissident been sent to GITMO? Last I checked, and I've been to GITMO mind you, only enemy combatants detained overseas and their affiliates are in GITMO. Please stop all this nonsense about being "gitmo'd" for disagreeing with the government already.

      • Re:Well? (Score:5, Interesting)

        by DrLang21 (900992) on Tuesday January 06, 2009 @06:12PM (#26349831)

        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.

        • Re: (Score:3, Informative)

          by hairyfeet (841228)

          Not only that but we know now that there are other places overseas that the feds can take you, and they even have a name for it, torture taxi [towardfreedom.com]. And let us be honest here: With all the shit pulled by the US government in the last 30 years you frankly would have to be nuts to take their word at face value on ANYTHING. I personally trust the government about as far as I can throw my overfed corrupt congress critters.

          And as we have seen in the past, anytime they start waving the flag and claiming "national se

      • Re: (Score:3, Funny)

        by Doc Ruby (173196)

        You checked at Guantanamo on just why each of the prisoners there was imprisoned?

        Dick Cheney, is that you?

      • Re:Well? (Score:5, Informative)

        by KeithJM (1024071) on Tuesday January 06, 2009 @06:54PM (#26350467) Homepage

        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?

        • Re: (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

          • Re:Well? (Score:5, Insightful)

            by Archangel Michael (180766) on Tuesday January 06, 2009 @08:07PM (#26351317) Journal

            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.

    • by fishyfool (854019)
      He can have their license to practice law reviewed by the state bar, and the bar can revoke their privilege to practice law. If, as a lawyer, you piss off a Federal Judge by not doing what the court asks of you, that can be the penalty.
  • by FooGoo (98336) on Tuesday January 06, 2009 @05:32PM (#26349189)

    http://en.wikipedia.org/wiki/Al-Haramein [wikipedia.org]

    If so I can see why the government would want to wiretap them.

    • by Anonymous Coward on Tuesday January 06, 2009 @05:36PM (#26349253)

      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.

    • by Chris Burke (6130) on Tuesday January 06, 2009 @05:36PM (#26349255) Homepage

      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.

    • by TooMuchToDo (882796) on Tuesday January 06, 2009 @05:38PM (#26349283)

      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: (Score:3, Funny)

        by ScrewMaster (602015) *

        You can't go all "24" on someone just because.

        That's a great turn of phrase. I'm sure Jack Bauer would get a kick out of it.

    • by 77Punker (673758) <spencr04&highpoint,edu> on Tuesday January 06, 2009 @05:39PM (#26349307)

      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.

    • by olddotter (638430) on Tuesday January 06, 2009 @05:57PM (#26349599) Homepage
      But get a warrant. I'm not against wire taps. But the US is not supposed to be a police state.
    • by Kindaian (577374)

      I specially like the "circular" argument.

      Arrest terrorists because they work for an ONG, then close down the organization because for sure they are a bunch of terrorists. After all, all those terrorists worked for them no?

      And then, yup... they are true terrorists see... they worked for a true terrorist organization...

      Interesting argumentation.

  • by olddotter (638430) on Tuesday January 06, 2009 @05:33PM (#26349201) Homepage

    Its good to see checks and balances, checking and balancing.

    Just the fact that things are being reviewed does the constitution good.
     

    • by Dolly_Llama (267016) on Tuesday January 06, 2009 @05:48PM (#26349483) Homepage

      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.

  • by jerep (794296) on Tuesday January 06, 2009 @05:41PM (#26349339)

    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.

    • by philspear (1142299) on Tuesday January 06, 2009 @05:54PM (#26349567)

      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

      • by Like2Byte (542992) <Like2Byte@yahoo.TEAcom minus caffeine> on Tuesday January 06, 2009 @06:10PM (#26349809) Homepage

        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.

        • Probably when they send their terrorist training film in to be made into a DVD.

          All three of your points depend upon the terrorists being so stupid that they're discussing their plans on a phone system, in the clear, which is tapped.

          The government isn't at any risk from losing "intel" on those cases.

          Intelligent terrorists (the kind that could actually carry out an attack) would be using encryption and anonymous email accounts.

          • All three of your points depend upon the terrorists being so stupid that they're discussing their plans on a phone system, in the clear, which is tapped. The government isn't at any risk from losing "intel" on those cases.

            Those are details though, you're missing his point about strategy. Regardless of the technology used, knowing which sections of your communications have been compromised lets you immediately fix those leaks and furthermore make some inferences about what methods your opponent is using. If

            • Re: (Score:3, Informative)

              by Shakrai (717556)

              that when the Allies broke the enigma code in WWII they didn't act on all the advance warning they had of German attacks because it would be too obvious that the German commmunications had been intercepted

              You are indeed correct. And even when they acted on the advance warning they had to take precautions. Example: During the campaign in Africa we used our code breaking abilities to locate German supply convoys. Before attacking them the Allies would arrange for a scout plane to "discover" the convoy in question. The Germans took the bait and assumed they were located via aerial reconnaissance.

        • I'm just pointing out that 'reminding' terrorists isn't on the agenda or even part of the problem.

          woosh. And here I thought I was being silly putting "/joke" at the end of my post.

      • by philspear (1142299) on Tuesday January 06, 2009 @06:37PM (#26350183)

        You know... it's always disturbing to me when my jokes get modded insightful, or when my serious posts get modded funny.

      • by scorp1us (235526)

        I read the other day at discovery channel of all places, of how feasible it would be for terrorists to use infected blood-sucking insects to attack non-muslim populations.

        When will we stop dreaming this stuff up? Eventually the report discredited it as a viable infection method, but still, why GIVE THEM IDEAS? Of course, because the possibility is non-zero, we need to spend millions on preparedness and additional studies...

    • 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.

      • by Doc Ruby (173196)

        Before the Bush era, such tricks were infrequent. Throughout the Bush era, they were the primary government operating principle.

        Prior to Bush Jr, they peaked during the Reagan/Bush era. Prior to that, they peaked during the Nixon era.

        See a pattern?

        • Re: (Score:3, Informative)

          Yes I see a pattern.

          Denial of Democrats. Ye willfully ignore the wiretapping & nonlegal tactics that Clinton, Carter, and LBJ had performed during their administrations. Also Truman and FDR liked to ignore the law. FDR even went so far as to threaten the U.S. Supreme Court since they kept declaring his laws "unconstitutional".

          Talk about subversion of the People's Supreme Law! "The Constitution and the Supreme Court be damned." - FDR

  • whos next (Score:5, Funny)

    by He who knows (1376995) on Tuesday January 06, 2009 @05:44PM (#26349407)
    I bet the judge is going to be wiretapped now.
  • by orzetto (545509) on Tuesday January 06, 2009 @05:46PM (#26349447)

    ... so first we have a president whose second name is Hussein, and now Muslims are bringing freedom to America?

    • by 77Punker (673758) <spencr04&highpoint,edu> on Tuesday January 06, 2009 @05:57PM (#26349609)

      I welcome Muslims to America, especially if they bring shawarmas and hashish.

    • Re: (Score:2, Funny)

      by Samschnooks (1415697)

      ... so first we have a president whose second name is Hussein, and now Muslims are bringing freedom to America?

      Oh, you're going all 1984 on us are you?

      Well, let me tell you something, I won't fall for it! I've been educated by the boxes! The folks who yell on there tell me that War is Peace and brings Freedom. They tell me that wiretapping American citizens and violating their Fourth Amendment rights is to keep us free! They also say that Civil Liberties are for pinko Liberals who hate America and if you do nothing wrong then you have nothing worry about! Freedom of Speech is OK as long is doesn't criticize America

  • Remember folks... (Score:5, Interesting)

    by Brandybuck (704397) on Tuesday January 06, 2009 @05:55PM (#26349589) Homepage Journal

    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)

      by DrLang21 (900992)
      I never saw too many people on here arguing for greater Presidential powers. But that aside, I trust Obama with those powers a hell of a lot more than I trust Bush with them.
      • It isn't whether you trust Barack Obama with those powers, but whether you trust the next George Bush (or vice versa, for the righties).
      • by SydShamino (547793) on Tuesday January 06, 2009 @06:07PM (#26349749)

        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.

        • If Dawn Johnsen, Obama's appointment for head of the Office of Legal Counsel is any indication, our president-elect is very much behind limiting executive power.

          Let's first remember that Bush installed John Yoo in this office, author of the infamous "the President can torture anyone he wants" memo.

          In contrast, Johnsen, a law professor at Indiana, has been an extremely harsh and very outspoken critic of the expansion of executive power under Bush. Writing for Slate, she said:

          I want to second Dahlia's f

    • Re: (Score:3, Interesting)

      by Chris Burke (6130)

      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

      • I am confident that the worst abuses of Bush's executive power will not be continued.

        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."

        • by Chris Burke (6130) on Tuesday January 06, 2009 @07:16PM (#26350727) Homepage

          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.

          • I'm sorry, but if you think doing evil because it's politically convenient is acceptable, then we have no common ground to speak to. Evil is evil. The only indicator we have as to whether Obama will fulfill his promises is his past performance... and his past performance is shit.
      • Re: (Score:3, Informative)

        by Doc Ruby (173196)

        Obama's announcement of Dawn Johnsen to run the Office of Legal Counsel [salon.com] (OLC, the office from which John Yoo "legalized" torture) is the best encouragement so far that Obama is reforming the uncurbed powers Bush/Cheney took for the White House. Also Leon Panetta for CIA and Eric Holder for Attorney General. I'd most prefer to see Joe Biden make his #1 job removing all the extra powers from his VP office, but I don't have such high hopes for Biden. Which is why Bush/Cheney's powergrabs were so dangerous: the

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