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Government Privacy The Courts

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

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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  • The media's logic. (Score:5, Interesting)

    by Anonymous Coward on Wednesday June 19, 2013 @08:29AM (#44048389)

    I felt I needed a dose of stupidity, so I tuned into one of the news channels to see what they were saying about this case. After they were done with their character assassination of Edward Snowden (as if it has anything to do with the NSA's spying), they decided to apply some brilliant logic to the situation: Since Snowden is so clearly a dirty traitor and can't be trusted, we should all trust the guys from the NSA to do what's right. Evidently, if one person cannot be trusted, you must trust the secretive guy who is in direct opposition to the other guy...

    And this comes from the people who claim to want small government. Yeah, okay. Small government... unless we think something will help stop the terrorists, and in that case, the government should do whatever it wants and violate the constitution as it wants!

  • by gstoddart ( 321705 ) on Wednesday June 19, 2013 @08:29AM (#44048391) Homepage

    So you lose the right to know your accuser, the basis on which you're accused, and the ability to see the evidence against you.

    But you have to trust us, if he wasn't a bad person we wouldn't be watching him. We're just not allowed to tell you why.

    This is getting pretty scary, and it seems like it undermines some pretty basic rights of the accused. Because apparently you could be tried and convicted without ever being told what for.

    The US (and sadly by extension most every other country) is ceasing to be free, and starting to get to the level of the of Soviets in terms of being able to do anything in terms of state security.

    Sad. This freedom thing has been a nice experiment, but not we're moving towards the global police state -- or at least a globe filled with a bunch of different police states.

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

    by portwojc ( 201398 ) on Wednesday June 19, 2013 @08:43AM (#44048471) Homepage

    You are facing your accuser. You just don't have the security clearance to view the evidence. And because such evidence will raise nasty questions about how it was collected. Like what's happening now...

    There is a quote out of SW EP1 that rings so true in government when anything goes south on them: "I will make it legal" - Darth Sidious

  • by MikeRT ( 947531 ) on Wednesday June 19, 2013 @08:46AM (#44048497)

    An individual cannot "wage war." An organization that can only field a few attackers here and there cannot "wage war." Waging war implicitly means the ability to attack an enemy, occupy their land and drive out their political authority. Most terrorist organizations cannot field an army capable of occupying a one camel town for more than week, and their affiliates that can are not making war on us.

    If the President can use his war powers on them, then he sure as heck can use them on MS13 or any other large scale criminal gang in the US as most of them have more power to inflict severe loss of life and property than 90% of the Islamic terrorist groups.

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

    by cold fjord ( 826450 ) on Wednesday June 19, 2013 @08:47AM (#44048505)

    There are plenty cans of worms to open over this.

    Bank Robbery Suspect Wants NSA Surveillance Records for Defense [breitbart.com]

  • by Tokolosh ( 1256448 ) on Wednesday June 19, 2013 @09:40AM (#44048995)

    In 1982, during the Falklands War, the British Royal Navy sank an Argentine Cruiser – the "ARA General Belgrano". Three years later in 1985, civil servant (government employee) named Clive Ponting leaked two government documents concerning the sinking of the cruiser to a Member of Parliament (Tam Dalyell) and was subsequently charged with breaching section 2 of the Official Secrets Act 1911. The prosecution in the case demanded that the jury convict Ponting as he had clearly contravened the Act by leaking official information about the sinking of the Belgrano during the Falklands War. His main defence, that it was in the public interest that this information be made available, was rejected on the grounds that "the public interest is what the government of the day says it is", but the jury nevertheless acquitted him, much to the consternation of the Government. He had argued that he had acted out of "his duty to the interests of the state"; the judge had argued that civil servants owed their duty to the government.

  • Federal Judges (Score:4, Interesting)

    by ThatsNotPudding ( 1045640 ) on Wednesday June 19, 2013 @01:17PM (#44051625)

    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.

    This is the absolute worst, heart-breaking part of this slow imposition of the police state. Sure, you expect the spooks (spies) to want ever more data and unchecked power, and sure, you sadly expect elected officials to either be fascists (R) or cowards (D), but goddamnit Judges! Federal Judges are supposed to be the bulwark against blatant abuses of the Peoples constitutional rights, especially by the government!

    For them to have just rolled over and rubber-stamped every FISA fishing expedition and allowing the DOJ to conduct Kafkaesque Star Chamber inquisitions is sickening and unforgiveable. Either they are as cowardous as the Ds, or they themselves have been blackmailed by data from PRISM, et al.

"my terminal is a lethal teaspoon." -- Patricia O Tuama