DOJ: Defendant Has No Standing To Oppose Use of Phone Records 396
An anonymous reader writes with news of a man caught by the NSA dragnet for donating a small sum of money to an organization that the federal government considered terrorist in nature. The man is having problems mounting an appeal. From the article: "Seven months after his conviction, Basaaly Moalin's defense attorney moved for a new trial, arguing that evidence collected about him under the government's recently disclosed dragnet telephone surveillance program violated his constitutional and statutory rights. ... The government's response (PDF), filed on September 30th, is a heavily redacted opposition arguing that when law enforcement can monitor one person's information without a warrant, it can monitor everyone's information, 'regardless of the collection's expanse.' Notably, the government is also arguing that no one other than the company that provided the information — including the defendant in this case — has the right to challenge this disclosure in court."
This goes far beyond the third party doctrine, effectively prosecuting someone and depriving them of the ability to defend themselves by declaring that they have no standing to refute the evidence used against them.
Abuse of our legal system, plain and simple (Score:2, Informative)
This guy knew straight-up he was funding terrorist activities, and is trying to use a technicality to get out of it. This is an abuse of our legal system, but, that just goes to show what a good legal system we have. As insulting as it is that we have to entertain this "appeal", we are entertaining it, entirely seriously, which goes to show who we are as a nation and our commitment to the rule of law and justice.
Read up on the case, it's enlightening: http://www.fbi.gov/sandiego/press-releases/2013/san-diego-jury-convicts-four-somali-immigrants-of-providing-support-to-foreign-terrorists [fbi.gov]
Re:Poisonous tree (Score:5, Informative)
Actually, it's both. From the article:
So not only didn't they collect evidence wrongfully, but the evidence they collected showed that he was innocent and they hid this from the defense. This isn't just slippery slope, this is greasing the slope and then shoving the American people down it!
Re:Scary (Score:4, Informative)
Or a different Supreme Court?
It's the one that ruled that government has the right to tax people to pay for something it was already paying for. Namely, hospital visits that the patient is unable to pay for. You know, since we won't allow the hospitals to refuse treatment to people who are unable to pay.
I know you're upset at no longer getting a free ride, but please, give it a rest.
Once again: Really? (Score:3, Informative)
Apparently Mr. Moalin once missed a telephone call from "Aden Hashi Ayrow, the senior al Shabaab leader," which makes it likely that a little more was going on than merely the donation of "a small sum of money.
Really?
Was it really A.H.A. who called?
Was he really calling the defendant? Or did he misdial the number?
And I could go on for pages.
What the government is claiming is that the defendant has NO RIGHT TO ASK for the information necessary to CHECK whether that is what happened, NO RIGHT TO CHECK whether the information was collected legally, and NO RIGHT TO GET IT THROWN OUT if it wasn't.
Says the government: We get to use this against you and you can't challenge it.
Seems to me that anyone being prosecuted with such information NECESSARILY has standing to challenge it. Nobody else could POSSIBLY have more standing.
To claim that the defendant doesn't have standing is to claim that NOBODY has standing. It's to claim that the government can make up ANYTHING IT WANTS, enter it into evidence, and NOBODY can check it.
The government needs to put up or shut up.
= = = =
There used to be a solid division between the intelligence services and law enforcement. That let the intelligence services collect information for fighting wars under looser rules which, though they might not be constitutional, at least didn't vaporize the constitutional rights of defendants in criminal trials.
Then the congress passed laws for, first the "drug war", then the "war on terror", that tore down this boundary. So now we have the end game, where the NSA and the federal prosecutors light their cigars with burning copies of the Fourth Amendment.
Re:Scary (Score:5, Informative)
What exactly in my post is "trolling"?
Moderators often confuse "I don't agree with you" with "Trolling".
They either haven't read or don't agree with the Slashdot moderation guide:
http://slashdot.org/moderation.shtml [slashdot.org]
Concentrate more on promoting than on demoting. The real goal here is to find the juicy good stuff and let others read it. Do not promote personal agendas. Do not let your opinions factor in. Try to be impartial about this. Simply disagreeing with a comment is not a valid reason to mark it down. Likewise, agreeing with a comment is not a valid reason to mark it up. The goal here is to share ideas. To sift through the haystack and find needles. And to keep the children who like to spam Slashdot in check.
Re:Once again: Really? (Score:2, Informative)
Was it really A.H.A. who called? Was he really calling the defendant? Or did he misdial the number?
From the FBI press release: [fbi.gov]
At trial, the jury listened to dozens of the defendants’ intercepted telephone conversations, including many conversations between defendant Moalin and Aden Hashi Ayrow, one of al Shabaab’s most prominent leaders who was subsequently killed in a missile strike on May 1, 2008. In those calls, Ayrow implored Moalin to send money to al Shabaab, telling Moalin that it was “time to finance the Jihad.” Ayrow told Moalin, “You are running late with the stuff. Send some and something will happen.” In the calls played for the jury, Ayrow repeatedly asked Moalin to reach out to defendant Mohamud—the imam—to obtain funds for al Shabaab.
The United States also presented a recorded telephone conversation in which defendant Moalin gave the terrorists in Somalia permission to use his house in Mogadishu, Somalia, telling Ayrow that “after you bury your stuff deep in the ground, you would, then, plant the trees on top.” Prosecutors argued at trial that Moalin was offering a place to hide weapons.
When Moalin cautioned, however, that the house could be easily identified from afar, Ayrow replied, “No one would know. How could anyone know, if the house is used only during the nights?”
Re:Poisonous tree (Score:5, Informative)
Well, we now know that the NSA has been secretly and illegally handing off intelligence to other agencies (SOD, DEA, IRS, etc.) for years, telling them to cover it up for court cases via a process called "parallel construction". So it would be completely within their established modus operandi.
http://www.reuters.com/article/2013/08/05/us-dea-sod-idUSBRE97409R20130805 [reuters.com]
Re:Poisonous tree (Score:3, Informative)
Actually, it's both. From the article:
So not only didn't they collect evidence wrongfully, but the evidence they collected showed that he was innocent and they hid this from the defense. This isn't just slippery slope, this is greasing the slope and then shoving the American people down it!
You didn't get that right. They closed the case in 2003 and a new one was opened after they were tipped off based on new evidence showing a connection to terrorism. In this case it appears to have been based on direct contact with an overseas terrorist. That would seem to be proper.
Hearing of the Senate Judiciary Committee on Strengthening Privacy Rights and National Security: Oversight of FISA (Foreign Intelligence Surveillance Act) Surveillance Programs - July 31, 2013 [tumblr.com]
MR. JOYCE: ...... So initially the FBI opened a case in 2003 based on a tip. We investigated that tip. We found no nexus to terrorism and closed the case. In 2007 the NSA advised us, through the business record 215 program, that a number in San Diego was in contact with an al-Shabab and east — al-Qaida east — al-Qaida East Africa member in Somalia. We served legal process to identify that unidentified phone number. We identified Basaaly Moalin. Through further investigation, we identified additional co-conspirators, and Moalin and three other individuals have been convicted — and some pled guilty — to material support to terrorism.
So based on this it doesn't appear that any skids are being greased, nor are the American people being pushed down it. Some terrorists appear to be having an uncomfortable ride though.
Re:Really? (Score:5, Informative)
It's not sanctimony to be upset about it
It's sanctimonious and hypocritical to pretend it's a matter of great concern, when you've spent decades ignoring the deaths of millions. It fits a political agenda, because it suits the US to declare the perpetrators terrorists. Many times that many people were tortured, killed and dismembered every single day of the Congo Wars.
Re:POLICE STATE AMERICA (Score:4, Informative)
Gen. Michael Hayden refused to answer question about spying on political enemies at National Press Club. At a public appearance, Bush's pointman in the Office of National Intelligence was asked if the NSA was wiretapping Bush's political enemies. When Hayden dodged the question, the questioner repeated, "No, I asked, are you targeting us and people who politically oppose the Bush government, the Bush administration? Not a fishing net, but are you targeting specifically political opponents of the Bush administration?" Hayden looked at the questioner, and after a silence called on a different questioner. (Hayden National Press Club remarks, 1/23/06)
---
Landay: "...the Fourth Amendment of the United States Constitution specifies that you must have probable cause to violate an American's right against unreasonable searches and seizures..."
Gen. Hayden: "No, actually - the Fourth Amendment actually protects all of us against unreasonable search and seizure."
Landay: "But the --"
Gen. Hayden: "That's what it says."
Landay: "The legal measure is probable cause, it says."
Gen. Hayden: "The Amendment says: unreasonable search and seizure."
Landay: "But does it not say 'probable cause'?"
Gen. Hayden [exasperated, scowling]: "No! The Amendment says unreasonable search and seizure."
Landay: "The legal standard is probable cause, General -- "
Gen. Hayden [indignant]: "Just to be very clear ... mmkay... and believe me, if there's any Amendment to the Constitution that employees of the National Security Agency are familiar with, it's the Fourth. Alright? And it is a reasonableness standard in the Fourth Amendment. The constitutional standard is 'reasonable'" ( h/t Dale)
-- Knight-Ridder's Jonathan Landay questioned Gen. Michael Hayden at the National Press Club in January.
>> from my archive.
and the amendment in question.
---
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
---
" Statutes authorizing unreasonable searches were the core concern of the framers of the 4th Amendment."
"It is a measure of the framers' fear that a passing majority might find it expedient to compromise 4th Amendment values that these values were embodied in the Constitution itself."
--- Justice Sandra Day O'Conner, the first woman on the Supreme Court of the United States of America. 1981-2005 (resigned)
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Re:POLICE STATE AMERICA (Score:2, Informative)
You should at least look into the details of the actual case if you're interested in those things, because he sure looks like a "real" terrorist to me. And the bank records do look like they prove it. This is their one case of a real terrorist they caught, and I'm not sure why it should be a surprise that they caught one guy with a dragnet that big. If there were lots and lots of people caught, and this was a random one, then maybe there would be all these other problems. And as for who will check, well, the jury can do that in the case of an actual convicted terrorist. None of your unknowns really casts extra doubt on that.
As for all the rest, it is beside the point. If you like the current rules, or not, should not matter as to your understanding of what is or isn't legal . Even if you're advocating for less rule of law (I'd personally prefer better law than just randomly less of it), it should not prevent you from understanding what the law is now. Or maybe, especially if you're advocating against it, you should already have known what the rules are now, or at least looked them up when it came up in the news.
Re:POLICE STATE AMERICA (Score:4, Informative)
Legally, there are categories of searches that don't require a warrant.
The plain language 'Secure against ... unreasonable searches ... no Warrants shall issue, but upon probable cause' is that a reasonable search requires a warrant. Period. There is not an exception in the Constitution anywhere. They've been invented by people who find the protections embodied in the Constitution inconvenient.
The framers of the Constitution were not distant figures we don't know much about. We have the minutes of the meeting and letters they wrote arguing over the wording of the Constitution. In this case, they thought that saying that (paraphrasing) "any power the federal government wishes that isn't listed here they cannot have" was quite clear and that those who choose to ignore that will do so no matter what words they write. They wrote that it's our duty to stop those people. Some of the other rights are there specifically to empower us to do so. (now discuss why -those- are under attack too)