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The Courts Privacy United States

Terrorism Case Challenges FISA Spying (buzzfeed.com) 108

An anonymous reader writes: As we've come to terms with revelations of U.S. surveillance over the past couple years, we've started to see lawsuits spring up challenging the constitutionality of the spying. Unfortunately, it's slow; one of the difficulties is that it's hard to gain standing in court if you haven't been demonstrably harmed. A case before the 9th Circuit Appeals Court is now testing the Foreign Intelligence and Surveillance Act in a big way, and whatever the outcome, it's likely to head to the Supreme Court. The case itself is long and complicated; it centers on a teenager who joined a plot to detonate a huge bomb in Portland, Oregon in 2010, but his co-conspirators turned out to be undercover FBI agents.

The case history is worth a read, and raises questions about entrapment and impressionable kids. However, the issue now being argued in court is simpler: the defendant was a U.S. citizen, and the FBI used FISA powers to access his communications without a warrant. Crucially, they failed to notify the defendant of this before trial — something they're legally required to do. This gives him and his lawyers standing to challenge the constitutionality of the law in the first place. It's a difficult puzzle, with no clear answer, but oral arguments could begin as soon as January for one of the most significant cases yet to challenge the U.S. government's surveillance of its own citizens.

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Terrorism Case Challenges FISA Spying

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  • What a World (Score:5, Insightful)

    by mentil ( 1748130 ) on Wednesday November 18, 2015 @06:43AM (#50953851)

    The only ones able to stand up in court for our constitutional rights as Americans... are the terrorists. What a fucked-up world we live in.

    • Re: (Score:1, Insightful)

      by Anonymous Coward

      It has always been that way. Anyone claiming rights beyond what the government allows have been labeled a criminal.
      As long as you don't want to go beyond the limits the government sets there is no need for you to contest those limits.

      Next time the government says that someone is a criminal, remember that it doesn't necessarily mean that it has anything to do with what is moral.

    • Re:What a World (Score:5, Informative)

      by peragrin ( 659227 ) on Wednesday November 18, 2015 @07:48AM (#50954001)

      Since when has that ever not been the case?

      Seriously when? the only way to legally challenge a bad law is by being the victim of it being used against you.

      Do you not know how this country works? It is why we have innocent until proven guilty so we can challenge bad laws.

    • Re: (Score:2, Interesting)

      by asylumx ( 881307 )
      Yup, one man with a bomb has more political sway than 10,000 citizens with ballots (and probably far more than that).
    • Re:What a World (Score:5, Informative)

      by Anonymous Brave Guy ( 457657 ) on Wednesday November 18, 2015 @09:08AM (#50954237)

      The trouble with fighting for human freedom is that one spends most of one's time defending scoundrels. For it is against scoundrels that oppressive laws are first aimed, and oppression must be stopped at the beginning if it is to be stopped at all.

      -- H. L. Mencken

    • The only ones able to stand up in court for our constitutional rights as Americans... are the terrorists. What a fucked-up world we live in.

      Not really. You have to show standing. If you can prove you've been harmed by the violation of your rights in some way other than being arrested, you can sue.

      • And, once you file suit, you can use legal motions to attempt to find if you've been harmed. It's a neat little Catch-22.

  • by Coisiche ( 2000870 ) on Wednesday November 18, 2015 @07:04AM (#50953893)

    They see a technicality that can be exploited and they're exploiting it. Right or wrong, noble or unpatriotic; these concepts are not relevant at all to the lawyers.

    Regardless of the outcome of this, a likely result is a legislative change to prevent future use of the exploit.

    As for the article, it's a very long read but what it seems to come down to is he was convicted for pushing the button when told that pushing the button would harm people. Which is reminiscent of a psychological experiment I once read about and I'm pretty sure that most people in that would push the button.

    • by ACE209 ( 1067276 ) on Wednesday November 18, 2015 @07:31AM (#50953951)
      You probably mean the Milgram experiment: https://en.wikipedia.org/wiki/... [wikipedia.org]
    • by BitZtream ( 692029 ) on Wednesday November 18, 2015 @07:35AM (#50953961)

      Right or wrong, noble or unpatriotic; these concepts are not relevant at all to the lawyers.

      They are not relevant to ANY lawyer.

      Part of being a lawyer is knowing going into it that you WILL have to essentially do something 'wrong' during your career. It is by design and part of the system on purpose, to protect the defendants and complainants. You can't abandon a case when you find out the defendant is guilty as sin because it makes it obvious that the defendant is guilty and taints their case either way. As a lawyer you must work to find the best outcome for your client regardless of your personal opinion because ... you can't do anything to hurt them (unless you want your career to end and be disbarred for life) which abandoning them would taint the court/jury opinion and thats unfair because your opinion could in fact also be incorrect. Its a tricky mess from the start that requires our lawyers to be scumbags.

      It is something lawyers MUST accept from the get-go.

      This is also how you know every lawyer you meet is a scum bag who has no moral fortitude, it is required as a function of the job that they be willing to sell their souls.

      Fortunately the kind of people who become lawyers really have no moral fortitude anyway and are in fact sell-outs to begin with ... and unfortunately we have a lot of those kinds of people ... who when then elect to run the government ... which then make more laws to require more lawyers and ... welcome to one of the reasons America is so fucked up and FISA not only was contemplated but actually exists ...

      • by CrimsonAvenger ( 580665 ) on Wednesday November 18, 2015 @07:41AM (#50953985)

        One point: it is not "wrong" for a lawyer to defend his client to the best of his ability, and do his best to get an acquittal, EVEN IF THE CLIENT IS GUILTY.

        The criminal defense lawyer's purpose in life is to ensure that the government plays by the rules. Period. So anything he does to that end is, by definition, "right".

        • Yes, it is.

        • by Anonymous Brave Guy ( 457657 ) on Wednesday November 18, 2015 @09:27AM (#50954287)

          A lot of the basic principles of how our legal systems work are based on greater-good arguments like this. The ethical requirement for a lawyer to represent their client faithfully and to the best of their ability is probably necessary for an adversarial court system to function effectively, for example.

          The trouble with greater-good arguments is that someone usually winds up the unlucky one, and if we're talking about legal/government issues, the consequences for the unlucky one can be severe. Whether your the hostage whose ransom wasn't paid, or the innocent who was mistaken for a terrorist by armed police, or the victim in court who has to relive a horrific assault from the witness box under cross-examination by the defence, or the wrongly convicted "murderer" sent to jail for life, it wasn't your fault that you got screwed by the system, but you still got screwed all the same.

          Thus we also get ethical arguments that it is better to let 10 guilty men go free than to convict 1 innocent man and so on. That's great if you're the innocent who got the benefit of the doubt, but not so great if you're the next victim of the 10 guilty ones who also got the benefit of the doubt. There are no easy answers to these issues. For some, there are probably no perfect answers at all.

          • Thus we also get ethical arguments that it is better to let 10 guilty men go free than to convict 1 innocent man and so on.

            That's not what the ethical issue is about. The issue is "Who Watches The Watchmen?" This issue has been an identified at least since the Roman Empire.

            The problem of how to effectively enforce the law on the enforcers of the law is a very difficult one. Militaries and police forces are made up of humans, with human failings. On one hand, they may break the law when convenient. On t

            • The problem of how to effectively enforce the law on the enforcers of the law is a very difficult one.

              That's certainly a valid concern, though I think it's a separate one to the reasons lawyers are normally ethically bound to represent any client to the best of their ability in an adversarial system.

              The us-and-them culture you refer to also seems to be particularly strong in the US, and it appears from the outside to be a serious and growing problem, though that could just be bias in which news makes it to my part of the world. If you asked most police officers here in the UK, I think you would find that co

        • One point: it is not "wrong" for a lawyer to defend his client to the best of his ability, and do his best to get an acquittal, EVEN IF THE CLIENT IS GUILTY.

          Not for all values of "guilty". It is not ethical, and in fact against both the rules and the law for a lawyer to lie on his clients behalf. So if the lawyer knows that his client is "guilty" (a client can't by definition be guilty, since the court hasn't ruled on the matter yet), through e.g. a private confession, but the client then instructs his lawyer to act as if that wasn't true, then the lawyer must recuse himself.

          As the information exchanged between the attorney and client is privileged, he can't te

      • by Anon-Admin ( 443764 ) on Wednesday November 18, 2015 @09:07AM (#50954233) Homepage Journal

        Fortunately the kind of people who become lawyers really have no moral fortitude anyway and are in fact sell-outs to begin with ... and unfortunately we have a lot of those kinds of people ... who when then elect to run the government ... which then make more laws to require more lawyers and ... welcome to one of the reasons America is so fucked up and FISA not only was contemplated but actually exists ...

        Seems to me putting a lawyer in a position where s/he can make laws is a conflict of interest.

        Though every time I post this it gets argued and modded down.

        • > Seems to me putting a lawyer in a position where s/he can make laws is a conflict of interest.

          Setting precedent with this sort of case is a once-in-a-lifetime dream for many lawyers. And "precedent" is a critical part of modern court proceedings: so it's critical.

  • by Anonymous Coward

    We should also ban cars. Cars are used by criminals and terrorists for transportation, bombing, and drive-by shooting purposes.
    They are also used by pedophiles to quickly kidnap children and transport them, as well as survey elementary schools and playgrounds.
    The risks of terrorists and pedophiles having their disgusting practices enabled by cars far outweigh the rights of the majority of society that doesn't constitute terrorists and pedophiles. If that isn't possible, then every car in existence should be

  • by Anonymous Coward on Wednesday November 18, 2015 @07:14AM (#50953911)
    "Decency, security and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen. In a government of laws, existence of the government will be imperilled if it fails to observe the law scrupulously. Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. To declare that in the administration of the criminal law the end justifies the means—to declare that the Government may commit crimes in order to secure the conviction of a private criminal—would bring terrible retribution. Against that pernicious doctrine this Court should resolutely set its face." http://www.fjc.gov/history/hom... [fjc.gov]
  • by Opportunist ( 166417 ) on Wednesday November 18, 2015 @07:38AM (#50953971)

    Especially in the light of the recent bombings in Paris it's tempting to react emotionally, but I think I'll stand with "rather let ten guilty people go than one innocent one be jailed".

    I prefer a justice system rooted in the principles of democracy and due process rather than allowing tools that smell more like the stuff out of the cold war KGBs arsenal. I prefer my law enforcement with oversight and someone to watch the watchers. Yes, that means that this time we'll probably have to let one of the bad guys go.

    But at least this means that the chance that the state turns into the bad guy at one time is lower. And that threat is far, far worse than all the terrorists on the planet could be combined.

    • by Anonymous Coward

      but I think I'll stand with "rather let ten guilty people go than one innocent one be jailed".

      A very noble, yet ultimately futile, gesture. The days when a judge rules in favor of a defendant because the Authorities did not follow proper procedure are long gone. The proof of that are all of the "feel good" "think of the children" Laws that do nothing to address the issue at hand, but rather infringe on the Rights of all Law-abiding Americans.

      I predict this Judge will uphold the conviction citing some obscure document, or even just because the kid is a "Bad Guy", and effectively validating the FBI'

      • by Anonymous Coward

        The days when a judge rules in favor of a defendant because the Authorities did not follow proper procedure are long gone.

        The hell they are. Try brining a case against NSA. The authorities will not follow proper procedure and the judge will rule in favor of the defendant.

    • by Anonymous Coward

      So basically they manufactured an enemy to justify a budget. Without the FBI creating the terrorist plot to rope this boy into, there was no plot, he was just a hot head without means or opportunity. So the terrorist plotters here are the FBI!

      I remember DeLorean, where they roped him into a drug deal, and it was entrapment. They leveraged his desire to pay back creditors into a crime to prosecute.

      Now we have Paris, where these were known targets, yet somehow unwatched and managed to get explosives and autom

    • Re: (Score:2, Insightful)

      Especially in the light of the recent bombings in Paris it's tempting to react emotionally, but I think I'll stand with "rather let ten guilty people go than one innocent one be jailed".

      Reacting emotionally is what people in power count on. Something bad happens (or threatens to happen) and those in power are all too eager to "help protect us" by increasing their powers. After all, when the threat passes, they'll give up the powers, right? Of course, they'll keep manufacturing threats if real ones don't

      • The one problem with their world view (which you describe so nicely) is that *eventually* the excesses become to much. People do not truly become inured, but they do want to live their own quiet lives and are willing to put up with a lot in the hopes of maintaining the illusion. But there is a limit, and when that is reached you have a very rough time. Like the French Revolution.

        The end result of the turmoil may not be a better life for the average person and it may not wrest power from all of the incumbent

        • Regrettably, for many who are in power they do not acknowledge this inevitability and the closer things approach such a turning point the more they grasp for additional power in the belief that they can secure themselves from repercussion.

          And this is where you start seeing things like calling people terrorists or traitors for exposing the problems in the system. Because people who speak out against those in power might hinder those in power from getting more power. They might even cause those in power to

  • by aaaaaaargh! ( 1150173 ) on Wednesday November 18, 2015 @07:57AM (#50954023)

    I fail to see the point of this article, if there is one. If a substantial part of the evidence was obtained illegally without a warrant or other grave procedural mistakes were made, then the case needs to be dismissed. If the mistakes are less grave, then only part of the evidence might have to be dismissed and the case can go on. This holds for suspected murderers, horse thieves and terrorists alike. It's called "due process".

    Where's the "difficult puzzle"?

    • Where's the "difficult puzzle"?

      The "difficult puzzle" is that due process is a drag to the government and they want a legal precedent to continue to ignore the constitution, badly.

    • by loonycyborg ( 1262242 ) on Wednesday November 18, 2015 @09:47AM (#50954375)
      I think the whole case is pointless. It simply makes no sense to convict anyone for something they didn't do. There was no crime, there was no possibility of crime happening. It only proves that he could trigger the detonation of a bomb to kill people if manipulated by someone. But being such a person is clearly not a crime. Maybe this could be a reason for supervision and psychological support, but 30 years in prison is ridiculous.
      • by dargaud ( 518470 )
        Then according to you there's no point in catching someone before they commit something illegal ? Even mass murder ? I agree that we shouldn't arrest people for thoughtcrime, but there are some limits...
        • "Arrest before they commit something illegal" implies that they're capable of committing something illegal, and that boy clearly wasn't. FBI provided explosives, planning and everything else. He only was capable of pushing the button and it's not enough to be useful part of a mass murder plot. Real terrorists wouldn't employ someone as useless as him and he couldn't pull it off alone.
        • What do you mean by "caught"? It makes sense to stop criminal proceedings, but we really don't want to start convicting people for crimes they didn't have a chance to commit.

      • I think the whole case is pointless. It simply makes no sense to convict anyone for something they didn't do. There was no crime, there was no possibility of crime happening.

        that doesn't make sense. Just because a crime didn't happen doesn't mean a crime wouldn't have happened. By that logic every crime stopped prematurely lacks the fruit for conviction because it didn't happen

        It only proves that he could trigger the detonation of a bomb to kill people if manipulated by someone. But being such a person is clearly not a crime. Maybe this could be a reason for supervision and psychological support, but 30 years in prison is ridiculous.

        This is the core of the argument. That anyone could be manipulated into pushing the button. But was he going to push the button or was he manipulated into it. That's the difference between a criminal who was stopped before he did something horrific and a guy who got caught up. The courts have thus far dec

        • Actually it's more than that. I don't think it makes sense to imprison people for intent alone. And the whole problem here that they only showed intent, and even then showed it imperfectly. He wasn't actually involved in bombing plot, and whether he thought he was or not doesn't matter. Justice should only ever punish things that were actually happening. It makes sense to punish members of a bombing plot that was prevented but in this case there just was no plot at all! There was nothing to prevent, so ther
          • by Cederic ( 9623 )

            Surely there's space in the world for a conspiracy type charge?

            He was plotting to set off a bomb. He tried to set off a bomb. You're suggesting that shouldn't be illegal?

            • He wasn't part of a plot to set off a bomb. FBI investigators didn't actually plan to set off the bomb, so there was no bomb plot to be part of. Police workers shouldn't be encouraged to set up fake crimes, their job is to stop crimes, not to commit them. There is no place in prisons for all people that would be willing to commit a crime under some particular circumstances if they were provided means for it by a third party, entire humanity would end in prison if such legal regime is adhered to consistently
              • by Cederic ( 9623 )

                He was plotting.

                I stated it, and you claiming there was no plot doesn't change his behaviour, his intent and the illegal nature of plotting to commit murder through use of an accelerated reaction.

                • The key issue here is his lack of ability to perform such an act on his own thus this doesn't warrant any prison time. Rather than that, less severe rehabilitation program must be employed. I'm sorry, but I simply will never accept that imprisoning someone who doesn't have means to commit some crime for attempting to commit that crime would ever make sense.
        • by Cederic ( 9623 )

          But was he going to push the button or was he manipulated into it.

          If the button had set off a bomb, that had killed people, would the manipulation defense have any standing?

  • by AHuxley ( 892839 ) on Wednesday November 18, 2015 @08:09AM (#50954057) Homepage Journal
    After the Church Committee https://en.wikipedia.org/wiki/... [wikipedia.org] the US had some very clear, simple, easy, not new domestic legal standards about what could and could not be done to US citizens.
    All the past illegality surrounding domestic dragnet warrantless spying on US citizens was to stop. The abuses of law presented in both open and closed settings needed to stop.
    If a US citizen, get a rubber stamped, covers everything, open 24/7, easy to submit paperwork for warrant and its all 100% good every case.
    Thats what the Church Committee requested after all its findings in the 1970's, just return to the US Constitution and everything the US gov wants to do domestically is 100% legal again.
    The "clear answer" is just get a warrant, like in any case over the decades then legal teams have much less standing to challenge before any US court.
    The other plus of having a real warrant is that the conviction is sound, no methods get mentioned in public. An attempted appeal might not even get started and be denied.
    • Law Enforcement Agencies: But getting a warrant is HAAAARD! It takes time! And it's so limiting versus just doing whatever we want to do! If you don't let us just do whatever we want to whomever we want, the terrorists win!!!!!

      (Sadly, this is pretty much law enforcement agencies' actual argument.)

  • by fuzzyfuzzyfungus ( 1223518 ) on Wednesday November 18, 2015 @08:28AM (#50954113) Journal
    The FBI clearly failed to comply with even the cursory procedural requirements imposed on their nigh-unlimited power; and this is a 'difficult puzzle'?

    How low can you go? I realize that terrorists are super scary and stuff; but if you can't comply with the onerous burdens of the FISA court, the one with 24/7 top-secret-clearance judges on call; and 'retroactive warrants', and similar user-friendly features; what exactly can you be trusted with? They wouldn't let someone that sloppy and/or dishonest operate a cash register.

    This case doesn't even have a "We need to strike a balance between security and civil liberties, guys!" angle: the FBI got everything they could possibly want; and just couldn't be bothered to follow the rules of evidence during the trial. It may well be that kiddo is a real hard case(or will be before this is over); but it would appear to be the FBI that needs some housecleaning.
    • by e r ( 2847683 )
      So bear this in mind when you're at the voting booth. You do vote, don't you?
  • In the past the US has been restrained by the Supreme Court in situations in which war is not declared. So far we have no declaration of war in regard to the terrorists. We have another term called a police action. Both the Korean War as well as Vietnam were police actions and not wars as such. President Truman tried to take over the steel industry in order to well supply our troops in Korea. The court disallowed that takeover less than 24 hours after Truman announced it. If we had had a declara
    • Korea was a UN military operation. It happens that the commanders, and most of the troops and ships, were from the US, but that didn't make it a US affair.

      It did convince the Soviet Union that leaving the Security Council in a huff was a bad idea.

  • It's often said that "Hard cases make bad laws", but our narrow rules pertaining to standing to challenge an unconstitutional law make sure that only hard cases will be heard. Evidence obtained from illegally intercepting communications under FISA won't be used against the average Joe or even against the low level criminal (we have Parallel Construction [wikipedia.org] for that. In the end, the truly bad laws can only be challenged by the most despised people - terrorists, crime lords, drug kingpins, etc. When that happ

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