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Government Privacy The Courts

NSA's Role In Terror Cases Concealed From Defense Lawyers 172

Posted by Soulskill
from the you-can-trust-us dept.
Rick Zeman writes "'Confidentiality is critical to national security.' So wrote the Justice Department in concealing the NSA's role in two wiretap cases. However, now that the NSA is under the gun, it's apparently not so critical, according to New York attorney Joshua Dratel: 'National security is about keeping illegal conduct concealed from the American public until you're forced to justify it because someone ratted you out.' The first he heard of the NSA's role in his client's case was 'when [FBI deputy director Sean] Joyce disclosed it on CSPAN to argue for the effectiveness of the NSA's spying.' Dratel challenged the legality of the spying in 2011, and asked a federal judge to order the government to produce the wiretap application the FBI gave the secretive Foreign Intelligence Surveillance Court to justify the surveillance. 'Disclosure of the FISA applications to defense counsel – who possess the requisite security clearance – is also necessary to an accurate determination of the legality of the FISA surveillance, as otherwise the defense will be completely in the dark with respect to the basis for the FISA surveillance,' wrote Dratel. According to Wired, 'The government fought the request in a 60-page reply brief (PDF), much of it redacted as classified in the public docket. The Justice Department argued that the defendants had no right to see any of the filings from the secret court, and instead the judge could review the filings alone in chambers."
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NSA's Role In Terror Cases Concealed From Defense Lawyers

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  • Star Chamber much? (Score:4, Insightful)

    by Anonymous Coward on Wednesday June 19, 2013 @08:22AM (#44048323)

    And by the way who the FUCK is overseeing the chain of evidence?

  • by Anonymous Coward on Wednesday June 19, 2013 @08:28AM (#44048377)

    And by the way who the FUCK is overseeing the chain of evidence?

    Obviously a secret overseer.

  • by Anonymous Coward on Wednesday June 19, 2013 @08:32AM (#44048407)

    Congress should be impeaching the President, and then in an act of real patriotism impeach themselves.
    99% of Congress went along with Bush's illegal anticonstitutional plan, and then went along a second time to Obama's tune.
    Fucking traitors that they are.

  • by Anonymous Coward on Wednesday June 19, 2013 @08:39AM (#44048441)

    Why? Because they let it happen.

    You don't give a toss about your own constitution, if you did, you would have done something by now.

  • by EmagGeek (574360) <gterich@aoMONETl.com minus painter> on Wednesday June 19, 2013 @08:42AM (#44048467) Journal

    As long as they can get their weekly does of the Kardashians, Americans just don't give a shit about their freedoms anymore.

    Fat, dumb, and happy. That's how the emperor of Rome did it, and that's how our government is doing it now.

  • by MickyTheIdiot (1032226) on Wednesday June 19, 2013 @08:48AM (#44048511) Homepage Journal

    Everyone need to read (or reread) Kafka's "The Trial" *now*.

  • by JustOK (667959) on Wednesday June 19, 2013 @08:51AM (#44048537) Journal

    Yes, because Communist barbarism is vastly superior.

  • by Shavano (2541114) on Wednesday June 19, 2013 @08:56AM (#44048565)

    Isn't that a bedrock principle of our justice system? What would you do if you were on a jury where the prosecutor was allowed to talk about evidence and not even the defendant's attorney was allowed to to see the order that showed it was legally obtained?

    Should the jury at that point disregard the evidence because they can presume it was illegally obtained?

  • by Anonymous Coward on Wednesday June 19, 2013 @09:02AM (#44048625)

    "The people can always be brought to the bidding of the leaders. That is easy. All you have to do is tell them they are being attacked and denounce the pacifists for lack of patriotism and exposing the country to danger. It works the same way in any country."

    - Hermann Goering

  • by bleh-of-the-huns (17740) on Wednesday June 19, 2013 @09:03AM (#44048635)

    No individual let this happen.

    The problem with the US as a whole is that everyone votes along party lines, versus voting for a candidate (regardless of their party affiliation) that best matches their individual ideals.

    At the same time, we have politicians making bold promises, and then failing on actually keeping any of those promises. The President for example promised a more open government, and an end to the surveillance programs that Bush started. Absolutely none of that has come about. He may have started, and possibly intended to keep those lofty goals, but in the end, he just failed.

    It is like that for every single politician out there. I'm not even going to get into the fact that they are all bought and paid for by one special interest group or another.

    What we need is to clean house, we need people who don't want the jobs as politicians, they will be the ones who will perform the best. Pick a teacher, pick a garbage man, pick anyone but those who are actively looking to be a politician. I look at the current crop of Congress critters and Senators, and I am not sure what they stand for, they certainly don't stand for the little guys within their respective states..

    Meh.. I am done,.. This turned into a rant that I was hoping to avoid.

  • by Anonymous Coward on Wednesday June 19, 2013 @09:06AM (#44048665)

    Communist barbarism, Capitalism barbarism ... both the Soviets and America have demonstrated that eventually you get fucked by either system of government, and both systems will conspire to take away your rights if they find it expedient.

    If you think glorious Capitalism is sparing you from any of this stuff, you are somewhat clueless.

    Unjust societies come in all colors and stripes, and America is already an unjust society, moving towards even more state control over the individual.

    Capitalism is a system of defining who owns what, but it doesn't make any guarantees about what you get to do with the rest of it. In its current form, corporate profits are more important than human rights.

  • Re:So much for... (Score:5, Insightful)

    by SirGarlon (845873) on Wednesday June 19, 2013 @09:07AM (#44048683)

    What the "national security" cloak is really about is controlling the evidence. It's easy to claim you're stopping terrorism when you control all the evidence that shows whether there was any terrorist threat in the first place. When the government goes to the bother of having a trial -- and that will be increasingly rarely -- they can bring out their best stuff and prevent the defense from ever seeing anything remotely exculpatory. When we get to the point where the government fabricates a key piece of evidence now and then, how will the court know? Who's to say that is not happening routinely?

    Why the courts admit secret evidence totally escapes me. Quite possibly, that's a worse breach of personal freedom than the surveillance itself, because without secret evidence the surveillance couldn't be (legally) used against citizens.

  • by Anonymous Coward on Wednesday June 19, 2013 @09:17AM (#44048777)

    Yeah, fuck the fascist USA with their terror squads, secret death camps for civilians, mass murders of citizens and what-not. Fucking come on.

    The first step in curing a disease is acknowledging its symptoms.
    Chanting U-S-A, U-S-A, U-S-A won't get you nearer to the solution.

  • by gstoddart (321705) on Wednesday June 19, 2013 @09:17AM (#44048781) Homepage

    The FISA court doesn't try people. Its primary purpose is to issue warrants for national security surveillance operations.

    And then deny the people who they claim to have evidence against access to that, while telling the actual trial judge to trust them.

    I also know that these guys will decide all sorts of shit is legal in their closed rooms that no reasonable person would agree with. You know, like Alberto Gonazles saying there was no actual right to habeus corpus. These guys can always find one or two people on their side to come up with legal opinions which ignore the laws and obligations of government. Those opinions are frequently blatantly illegal, but as long as someone on staff said it was OK, they do it.

    These guys are far more interested in expediency and paranoia than any laws.

    Legislatures and executives must engage in oversight of their intelligence agencies.

    Those branches have demonstrated time and time again they can't be trusted. And the more they do shit like this, the more obvious it is that they aren't trustworthy.

    So now we have citizens who can't see the evidence against them or defend against it, based on the assertions of organizations who refuse to be named or involved. And I simply don't believe you can trust these people are complying with the law unless there's far more transparent oversight of them.

    Because right now, it sounds like they could pretty much cook up anything in the back room, and just say "trust us judge".

    You may want to live in that world, but I'm not particularly happy about it.

    If someone is now finding that their own defense lawyer has no access to the evidence against them, then I would call that a kangaroo court like you'd see in a banana republic, not a fair process in a democratic country. And if you're not actively keeping your country free, you're watching it slide into an over-reaching state.

  • withholding evidence from the defense because it's classified? That's akin to a show trial.

  • by gay358 (770596) on Wednesday June 19, 2013 @10:47AM (#44049707)

    If prosecutor is allowed to present secret evidence to the judge, the defence lawyers should also have the right to present their own secret evidence that the prosecutor will not be able to see/hear. I wonder how fair they would find it...

  • by Anonymous Coward on Wednesday June 19, 2013 @10:49AM (#44049745)

    Then why shouldn't the government have complete access to your data?

    For the same reason that (some) people being exhibitionists shouldn't allow the government or some business to secretly install video cameras in my bathroom. And then when they are discovered have some idiot say (and be taken seriously) that everyone knows that you should sweep your bathroom for cameras and anyone who doesn't has no expectation of privacy.

    As the technological means of snooping improve at a pace consistent with Moore's Law, and the "internet of things" increases the physical space that is internet connected, the expense and technological difficulty of maintaining any privacy will become prohibitive for any person who wishes to communicate at all.

      Accepting the argument that nobody has any justifiable expectations of privacy under any conditions where a better informed person might not have an expectation of privacy is the sure path to nobody having any privacy anywhere.

  • by PraiseBob (1923958) on Wednesday June 19, 2013 @11:10AM (#44050011)
    The NSA data was used to identify suspicious behavior, and establish probable cause, but all the evidence used to convict was collected by normal law enforcement.

    Court cases get thrown out every single day because of issues in establishing probable cause. It is one of the most common reasons for criminal cases to be dismissed in court. For the government to now claim that probable cause can be established without the defendant seeing the evidence is quite literally overturning centuries of jurisprudence.
  • by hajo (74449) on Wednesday June 19, 2013 @11:18AM (#44050131) Homepage

    >Yeah, fuck the fascist USA with their terror squads,
    We have those, they're called special forces and they will kill people in autonomic countries without permission of the government of said countries. We don't deny this, we're proud of them.

    >secret death camps for civilians,
    The US has acknowledged innocent civilians being held in Guantanamo. Even though we know they are innocent, various legal and political issues keep us from releasing them. People do die and commit suicide in that hellhole.

    >mass murders of citizens and what-not.
    We lost about 3,000 people on 9-11, Since then we've lost about 3 times as many US military lives and 30 times as many permanently injured. A high price to pay for the US. Since we invaded Iraq and Afghanistan between 300,000 and 1,5 million citizens in those countries have lost their lives due to military type conflict.

    >Fucking come on.
    I'm fucking coming into your ass right now...

  • by Jason Levine (196982) on Wednesday June 19, 2013 @01:22PM (#44051683)

    They won't because they are all politicians. If they were in the Oval Office and had the choice to give up some of their power, they'd balk as well. (Maybe one or two would do it, but they are the exception and would be quickly attacked by the other politicians as being "soft on terrorism.")

  • Re:So much for... (Score:4, Insightful)

    by vux984 (928602) on Wednesday June 19, 2013 @04:01PM (#44053471)

    For the purposes of illustration, suppose the US was able to listen in on a North Korean spy that had just delivered a load of man portable anti-aircraft missiles to an al Qaida cell*. If the al Qaida leader had told the North Korean spy that he had a plan to shoot down a passenger jet at San Francisco airport, and the spy reported that back to headquarters, the US could intercept that message and know about it. There might be enough information in the spy's report (to whom the missiles were delivered, where, when, what they would be used for) to lead to an arrest of the terrorist.

    Sheesh, this isn't a problem. Its just NOT. Regular police deal with it ALL the time.

    Suppose run of the mill police informant witnesses a crime, but if he testifies in court it blows his cover and the powers that be know that the inside information & access he has is worth far more than the arrest of one person, so they don't use it. But they still know who committed the crime and will keep an eye on him and try to find another chain of evidence with which to go after him. Or go after him for something else... for a famous example: tax evasion.

    NSA secret evidence is really no different at all. And it should be treated the same. As far as the civil court system is concerned, if it "too classified" to be presented in court and made available to the defendant, then it is not admissible in court and can't be used to convict. If the NSA's access to North Korean terrorist communications is to valuable to compromise, then so be it, don't use it to arrest the guy. Find some other way. If he goes free, for a while, until they can find something else that's the price of keeping the access to the terrorist communications network. I can live with that.

    You can't have both. And you shouldn't want both. Otherwise, we're a short hop away from witch hunts. The police informant with high level gang access can decide you slighted him at the bar the other day, and reports he saw you arguing and then beating on a now deceased hooker. You get arrested, and at trial, they tell you a secret witness saw you attack her. Good luck.

    Substitute NSA agent for police informant? What's the difference? Secret evidence is bad. If that's all you have, and you want it to remain a secret, you shouldn't be able to use it in court.

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