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.
Just remember... (Score:5, Insightful)
Scary (Score:4, Insightful)
"when law enforcement can monitor one person's information without a warrant, it can monitor everyone's information, 'regardless of the collection's expanse.' "
-- totalitarian cliche goes here --
Re:Really? (Score:5, Insightful)
The argument makes sense to me. AFAIK a defendant has the right to know specifically how the evidence against him was collected, and to be given any potentially exculpatory evidence. If you want to claim "national security", then you can't prosecute.
POLICE STATE AMERICA (Score:5, Insightful)
Not just a provocative Slashdot Discussion Title... But the horrible inevitability you live in today.
Re:Speech (Score:5, Insightful)
If money is speech as is precedent in the U.S, why is his donation to a terrorist group not protected under the first amendment?
Touché.
Re:Scary (Score:5, Insightful)
The really scary think is that they can make claims like this in the open without fear of repercussions. Totalitarian bureaucrats all over the world must be so proud to have the US finally in their ranks.
Point of order. He isn't refuting the evidence (Score:5, Insightful)
Re:Scary (Score:5, Insightful)
This is actually a good development. This is the type of case - supported by our government's pubic declaration that no more privacy actually exists (with or without a warrant) - that will end up in the SCOTUS. We may finally get this crap struck down ... or we'll all get the officially sanctioned OK to rise up against our oppressive government.
Re:Scary (Score:5, Insightful)
SCOTUS striking this down? You're joking, right?
Re:Really? (Score:5, Insightful)
A little more background, courtesy of the Daily Mail. [dailymail.co.uk] The Slashdot summary is a bit vague, referring to "donating a small sum of money to an organization that the federal government considered terrorist in nature." 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." You may recall al Shabaab as the group behind the recent slaughter at the Westgate Mall in Nairobi. So to say "an organization that the federal government considered terrorist in nature" is to omit some rather important background. By any rational definition, al Shabaab is certainly a terror group.
Re:They begin to show their true colors... (Score:5, Insightful)
Now the legal rights after arrest are been hurriedly closed off.
No basic rights to protest, no basic rights during the investigation and interrogation, no legal secrecy standing before the court, no public trial with fully presented evidence, make a fuss and other medical options become available.
Re:Really? (Score:4, Insightful)
One of the big corner stones of the criminal justice system is that both parties have equal access to the evidence and witnesses. If you were charged with murder, the prosecution couldn't have a surprise witness appear, give testimony, and then leave without your lawyer having the ability to cross-examine. If the prosecution has a potential witness, they need to disclose this to the defendant's lawyers ahead of time so that the defense can prepare.
What the government is essentially saying with this is "we can present 'a witness' (the phone records) but won't allow the opposing side to 'cross-examine' said evidence to cast any doubt that it isn't true." So the jury will be left with the government's side ("these phone records show he's guilty") and the defense's side (shrugs). Who do you think they'd go with?
Even worse, the article states that the government looked into the defendant's actions again and concluded he had no link to terrorism. This was done before his trial and was kept from the defense. Going back to the murder analogy, this would be like the police finding a gun with prints on the scene, realizing the prints were NOT the defendant's, and then hiding said gun so that the defense couldn't use it to acquit. Actions like this undermine our criminal justice system.
Re:Abuse of our legal system, plain and simple (Score:5, Insightful)
This guy knew straight-up he was funding terrorist activities
I don't give a damn. I could care less if he's as guilty as sin. The Constitution is more important than catching some two-bit financial contributor to an organization the US government has labelled terrorist. You want the terrorists to win? Just keep wiping your ass with the Constitution. Then the terrorists win by getting us to abandon what's been the organic law of this country for over two centuries, and which every school child in this country is taught the importance of (apparently many people didn't pay attention in class).
As insulting as it is that we have to entertain this "appeal"
We won't know if it's being seriously entertained until he's granted a new trial, and the court takes his case seriously.
And what's insulting about it? I'll posit that he's guilty. It's still a defense attorney's obligation to try to get his client off. It wouldn't be the first time that evidence was tossed out because of a Constitutional violation. It's more important to defend the Constitution than it is to not let one or two criminals off.
Read up on the case, it's enlightening
What better source to get unbiased information than the FBI. Even believing everything the FBI says, this case is penny ante. Why not give them the same strict punishment that HSBC got for knowingly laundering billions of dollars over a period of years for terrorist organizations? I'd worry a lot more about that than a contribution that most people could put on their credit card.
Is this important? (Score:5, Insightful)
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."
Is this important?
He's claiming not that the evidence is wrong, he's claiming that it was collected illegally.
It's often been said that the defense of freedom is the defense of scoundrels (H. L. Mencken [quotationspage.com]). We believe that a kiddie porn merchant has the right to a fair trial, the KKK has the right to assemble, and Rosa Parks [wikipedia.org] has the right to sit in the front of the bus.
Should we base the legitimacy of rights and freedoms on the character of the accused party?
Re:Really? (Score:5, Insightful)
You may recall al Shabaab as the group behind the recent slaughter at the Westgate Mall in Nairobi.
As terrible as that was, I wish I could say that qualified as a major slaughter in Africa. Are you aware of what's happened in, for example, the Congo in recent years? The Second Congo War was the bloodiest war since WWII, and most Americans have never even heard of it. I don't know if the US should have gotten involved to stop it, but it didn't. Now we're sanctimonious about a mall shooting? That's called a political agenda, not a concern for human life.
Overused comparison but ... (Score:5, Insightful)
Re:Poisonous tree (Score:5, Insightful)
We know (now) how the evidence was collected. We also know that most of it was collected without probable cause. The issue isn't the method of collection, but the justification for it.
Actually, the method is also important. If the government claims they intercepted an email sent by the defendant, how does a jury know whether he actually sent that email if the defense can't subject the government's methods to scrutiny. For all they know the government mixed up the email addresses/etc.
You can't just present evidence against somebody in court without defending the methods under which the evidence was collected.
Re:Speech (Score:5, Insightful)
The list of banned organizations are not public. The Electronic Frontier Foundation could be considered a "terrorist organization" under a secret NSA list. Once you donated to that organization and later the government declares that organization is considered "Terrorist organization" it is too late. It is now for you to sell all your belongings to get a good lawyer just to stay out of jail.
Re:Is this important? (Score:5, Insightful)
First, terrorism is not war. It is crime. War is something that occurs between nations. Terrorism has only been treated as an act of war since 9/11 because doing so allows the government to do things that they couldn't otherwise do and it helps to keep the sheep scared enough to not look too closely. If this didn't happen and we treated it like crime (as it should be and always had been in the past) then we would probably be safer than we are now and still have the rights that have been taken away from us for this illusion of security.
Second, unless my reading comprehension has gone to crap, the 4th amendment doesn't say anything about foreigners. Nor does it apply differently to citizens and non-citizens. This is because just like with all of the Bill of Rights, it is not granting rights to anybody, but limiting how the government may infringe upon those rights. Rights being something inherent in being human and not something that can be granted to you, your citizenship does not play a factor into whether or not you have them. And since the articles in the Bill of Rights do not specify citizenship, the government is equally restricted no matter who the person is (not that it stops them).
As for the immediate question...it does matter how the evidence was collected whether the man is guilty of what he is accused of or not. Those protections are there for a reason and everybody benefits from them even if it means that a bad guy gets away once in a while. The alternative is for the system to be tilted even further in the direction where innocent people get accused and convicted of things they did not do. It already happens too often.
Re:Scary (Score:4, Insightful)
Except it is not a tax. It wasn't a tax when the bill passed Congress, it wasn't a tax when President Obama signed it into law, and it wasn't a tax when the Supreme Court decided they would call it a tax because the FINE for not buying a product is paid to the IRS.
Re:POLICE STATE AMERICA (Score:5, Insightful)
It would not, for example, get rid of the bank records of his financial transactions with terrorists.
Charities and other money-collecting entities are put on the list of terrorist groups all the time. Who can tell if some charity is on that list? Who will check? How close the match has to be? What if you send money on Jan. 01, and the group is declared terrorist on Jan. 05? Or a year later?
The safest mode of operation is to not send money to anyone.
Re:POLICE STATE AMERICA (Score:2, Insightful)
Frankly, the former is bad enough, though not unexpected. It more or less means that the DoJ (and other "law enforcement"* agencies) is the sworn enemy of the people. You could already see similar patterns emerge in their actions against Aaron Swartz, and, say, Alfred Anaya, and plenty of other people. And the latter happens too, though from a quick reading the summary, not in this particular case (yet).
Before you pity the poor American, remember that non-Americans --who don't even need to have done their naughty in the USA nor have transgressed against laws in their own country-- caught up in this American Law Enforcement rigamole tend to have no voice at all, and so they tend to silently get steamrollered by this sort of agency. Soon, though, they'll be joined by Americans, if this sort of "reasoning" stands up in court, and in other cases it already has. For who then will still have standing before American Justice, if not the American People?
* Quotes because creatively using the laws as tools to try and maximize convictions isn't really "enforcement", it's pandering. Exactly to whom is an interesting thought exercise.
Re:POLICE STATE AMERICA (Score:3, Insightful)
We NEED to be allowed to challenge stuff like that in court. If you cannot challenge evidence being used against you just because it does not explicitly belong to you, the road this opens is quite fatal. Anyone can use anything against you so long as it's not yours and you're not allowed to fight back? That means you can't even get false evidence dismissed, let alone get a mistrial out of it. That stuff is now 'real', and uncontested.
Now when the king accuses you of treason, you either say yes, or you are now guilty of treason for having called the king a liar.
And there go all your rights.
Re:POLICE STATE AMERICA (Score:5, Insightful)
don't see why people keep making a fuss about this part,
They're making a fuss about it because companies don't give a flying fuck through a rolling doughnut about your civil rights, or anyone else's. They're only too happy to cooperate with the government, or anyone else with money. These records contain more personal information than would often be obtained if I ransacked your house. And having a phone, internet, etc., is essential for surviving in today's society. It isn't optional if you want a job, friends, or anything other than living in the woods. Corporations track everything about you; Bank records, cell phone records, medical records -- everything you do has a record of it kept by a corporation, somewhere.
It's an attempt to deprive someone of their rights against unreasonable search and seizure by simply asking somebody else to do it. And by attempt, I mean they already did it. And by already did it, I mean they've been doing this since the 1960s; but improvements in technology now mean they can do this globally, against everyone, for next to nothing. It's like the argument about how sharing music, etc., was legal... until advances in technology made it trivially easy, and suddenly, we had to throw people in jail for decades at a go and fine them hundreds of millions of dollars for doing the exact same thing, except they were doing it faster, and better, now.
Now personally, I don't care that the government wants to collect 'all the things', but they need probable cause to search all the things. In other words, collect everyone's cell phone records if you want, but you need a reason to look at them that passes constitutional muster. Because if we allow this to stand, then everyone will be a criminal in some fashion, and the government can, via selective enforcement, get rid of anyone they want.
The fact is, the laws are so complex that even our own government can't keep track of them all. If you let them gather evidence on everyone in bulk, you've created a system of efficiently removing political adversaries under the guise of the justice system. It all but destroys the democratic process.
THAT, is why people keep making a fuss; They can't create eloquent arguments to explain this, but it doesn't mean their fears are any less justified!
Re:POLICE STATE AMERICA (Score:5, Insightful)
An improper warrant results in dismissal of the evidence it produces. It's called "fruit of the poisoned tree". I'm not a lawyer, but our lawyer used it in court once to keep my brother out. When police raid a house without a warrant, everyone walks. When police get evidence without a proper warrant, it is removed with prejudice. A proper warrant is a vital requirement for the collection of evidence.
This is basically accepting someone else's word, their records about you, as evidence. It is now legally acceptable for the government to enter "hearsay" as evidence against you. You aren't even allowed to challenge it, like you can any other evidence. It basically boils down to, "You're guilty because we say you are. Now take it like a bitch!"
Re:POLICE STATE AMERICA (Score:5, Insightful)
Hypothetical: The police need a warrant to search your house, but it's OK to have 24/7 surveillance of the inside of your house because you purchased a Kinect, and Microsoft decided to send the stream to the authorities. Why would anyone be upset over that?
How did you miss the point here? This isn't about technology, this is about due process, it's about human rights, it's about the balance of power between the government and its citizens, and it is most importantly about answering whether a democracy can survive with this level of intrusion into people's personal lives by the government.
It is said that you defend democracy with four boxes; The soap box, the ballot box, the jury box, and the ammo box. You are to use them in that order. The soap box I think we can say has safely failed. The ballot box has become useless -- every candidate you can choose is going to support this as a pre-condition to his political career. This is the jury box now.
This isn't a technology problem. This is a social problem. And it's one that's rapidly running out of peaceful solutions. :( Is this case going to trigger a civil war? No. But the large number of cases like it paint a pattern -- and it's that pattern that everyone is worried about.
Things that nobody is worried about: The three guys who actually bought the new XBone.
Re:Scary (Score:3, Insightful)
You really can't see the difference? If I buy a 700 dollar a month policy (what I have now) then I pay 700 bucks for that insurance. I already paid tax on that money when I made it through payroll deduction. Now if I decide not to take insurance and instead stick that money in my pocket they will take the original tax PLUS more money as a fine to penalize me for not doing what they want me to do. That is Double taxation. Now we go to the other scenario. I pay tax on the 700 dollars through payroll deduction when I make it. I pay my 700 dollars to the insurance company and at the end of the year 1 take a deduction for 700 dollars times 12 for buying Insurance. See the difference. Under scenario number two I actually get a break for doing what they wanted me to do instead of the assfucking I got in scenario one or the neutral effect that I had before the "Affordable Care" act. If they really wanted to be fair they would have used scenario 2 but instead they're fucking me. I know it and I fucking don't like it. Maybe I have to take it but I'm pissed about it and I don't give a shit who knows it.
By *not* purchasing insurance you are placing the costs of the risk that you may need significant medical attention on society rather than on yourself. As such, you are externalizing the risk of injury and the medical costs associated and "assfucking" your neighbors in your haste to accumulate wealth.
Re:POLICE STATE AMERICA (Score:5, Insightful)
This case is the test. They threw the book at a guy obviously donating to a terrorist organization pretending to be something it isn't. Prosecutors are building a weapon for future use. This is also why it's focused at an individual, the lots and lots of the others are being ignored so they can slam-dunk this case and make it the example.
In a few years from now, suppose you decide to donate to what is obviously not a terrorist organization, but runs contrary to the goals of the government (an ACLU, an EFF, a Wikileaks, any number of organizations). This weaponized test case can help support throwing the book at you, too.