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Mixed News on Wiretapping from 9th Circuit US Court
abb3w writes "The bad news: the United States Court of Appeals for the Ninth Circuit has ruled (pdf) that the Al-Haramain lawyers may not submit into evidence their recollections of the top secret document handed to them detailing the warrantless electronic scrutiny they received. 'Once properly invoked and judicially blessed, the state secrets privilege is not a half-way proposition.' The good news: they have declined to answer and directed the lower court to consider whether 'FISA preempts the common law state secrets privilege' with respect to the underlying nature of the program itself ... which also keeps alive hopes for the EFF and ACLU to make those responsible answer for their actions."
I believe that when the Legislature addresses some domain which had been prior subject to common-law, the legislation takes precedence.
e.g.: Statutory Marriage v. Common Law Marriage.
Technology -- No Place For Wimps! Grateful Dead and Jerry Garcia Chatroom -- http://www.wemissjerry.org
If the government can't violate everyone's civil rights with complete impunity then the terrorist will win. We don't want the terrorist to win, otherwise they would take away all of our rights and freedom! See, we have to give up our freedom to keep it! I love big brother. He will protect me from the bad people, right?
Diplomacy is the art of saying, 'Nice doggie!' till you can find a rock.-- Wynn Catlin
No, a one-way proposition is something where one side gets nothing.
2. proposition - (logic) a statement that affirms or denies something and is either true or false
Either this is secret, or it is not. There's no half-way secret where they can put their second-hand recollections in evidence. Of all the various things I've heard, this is most sane. Now I'm sure some here would argue whether there should be "state secrets" or not, but the only sane way to implement it is that whoever is given access is restricted from passing it on. Otherwise you could memorize it, record it to tape or whatever - because it's not the actual classified document, it's not classified? What the hell kind of sense would that make?
Live today, because you never know what tomorrow brings
Rush Limbaugh is a perfect real world example of an oxycontinmoron
It seems like it's a race to see if the Ninth can rule definitively on the culpability of the telcos (AT&T in particular) before the Congress rewards the telcos (and by implication the Bush Administration) with immunity.
:-)
There remains the question of whether the SCOTUS will overturn any pro-citizenry ruling the Ninth makes anyway.
But the more that comes out before the Ninth, the harder it will be for Congress/SCOTUS to completely immunize the telcos and the White House.
I hope the clerks in the Ninth make sure the judges don't choose this month to switch to decaf! (There's an amusingly twisted Ninth-Circuit-judges-meet-Lloyd-Bridges-from-Airplane! visual in there somewhere....)
Keep believing the right things will happen and act accordingly.
why not just expect it to be listened to?
... it's about how our government jumped the track, and what we can do to put it back. If we tolerate such egregious abuses of government power and make excuses for it, they'll keep grabbing more until they have it all. As citizens, we need to push back, and push back hard, or matters will only get worse.
Well, sure, that's just basic security. But this isn't really about the specific issue of telco complicity
The higher the technology, the sharper that two-edged sword.
That's either silly if you don't like the state secrets privilege, and very dangerous if you do.
You're always going to run into this problem as long as there is secret information involved. If you accept the premise that there is information that really ought to be classified, which really would endanger national security, reveal vital intelligence capability, compromise friendly operatives, expose military secrets and so on. What can you do, assuming you have such information showing that someone is a criminal?
a) Black ops - no judge, no jury.
b) Hold a trial, but don't reveal the evidence. Kafka already wrote the book on this.
c) Reveal it to the defendant's lawyer under seal.
d) Don't do anything - let extremely dangerous men go free because being forced to reveal the information would be even more damaging.
e) Reveal everything to the public - but imagine putting top secret files someone stole into evidence, it wouldn't make sense.
There should most definately be laws against secret laws and secrets courts. Secret evidence on the other hand you can't really get away from and there's no ideal solution that completely serves all interests. Feel free to pick one or come up with one I forgot, but providing it to lawyers under seal is a compromise to serve two masters at once - to give the accused a fair trial and at the same time protect national security. The alternatives are quite frankly worse.
Live today, because you never know what tomorrow brings
I've never really been comfortable with the claim of "State Secrets" being used as it is in courts. I totally agree with not releasing information that should be kept under wraps for whatever reason, but don't like that it can be used as a way to cover up malfeasence either.
In any decently-run system, a claim of secrecy should be honored, but only as a stipulation that the opposing side's claims are true and accurate. In other words, a default judgement against the government in that case.
Justice should be blind, but not deaf nor dumb.
Refusing to permit information into the court denies the plaintif due process. So let's admit any state secret, with the understanding that someone has to do time for it's release to the world. If the plaintif loses the case, then he goes to a criminal trial for having forced the state to reveal secrets. If the defendant loses, then he goes on trial.
So when a secret is revealed, someone does time for it. This would compel all government bureaucrats who aree in charge of secret projects to make sure that those projects do not get out of hand.
Logically speaking all criminal activity is secret whether it is carried out by agents of the government or private individuals working to their own purposes. There is never any excuse where criminal activity once discovered should not be prosecuted, that is a direct denial of justice and one of the basic tenets that all people are equal under the law, including politicians, as well as, agents of the NSA, CIA or the FBI or any other agencies from around the world who where directly or indirectly involved.
The government does not do anything, it is always individuals with in government who carry out the actions of government. It is not the government that is pursued and prosecuted in the courts, it is the individuals who have acted outside the interests of the government and the people whom the government is meant to represent.
The most important issue of any court case is the primary interests of the people and the active public pursuit of justice, no so called secrets should ever be allowed to under mine the sanctity of the courts, the basic means by which, the public can ensure that the government is in fact acting in the public interest and that functions of government have not been treasonously usurped to feed the greed of a corrupt loathsome minority.
Chaos - everything, everywhere, everywhen
It's not bad news, it's good news. If the Al-Haramain lawyers were allowed to use their "recollections", they could say anything, and the only effective defense the govt would have would be to produce the documents and thus reveal state secrets.
All that aside, neither the govt nor the Al-Haramain lawyers actually want the top secret documents revealed. The govt because the information is top secret and would harm ongoing investigations; the Al-Haramain lawyers because even though the documents may prove standing the govt illegally wire-tapped them, would also show Al-Haramain's guilt in funding world-wide terrorism. Remember, copies of these documents were sent to Al-Haramain in Saudi Arabia - they could have been released already with no legal consequence by Al-Haramain in Saudi Arabia.
What Al-Haramain really wants is for the federal courts to restrict wire-tapping - any wire-tapping - as much as possible. Why? Take a wild guess.
Here is the best source for details about this conflict and Al-Haramain terrorism links.
http://www.zombietime.com/al-haramain_surveillance/
Good heavens Miss Sakamoto - you're beautiful!
d) Don't do anything - let extremely dangerous men go free because being forced to reveal the information would be even more damaging
Is the correct answer. In the absence of a trial and the admission of evidence to open court, the state has not proved that the man involved is actually extremely dangerous. The government cannot have it both ways. If it "knows" the guy is dangerous, then it can bring him or her to trial.
The best way to fight terrorism, is with terrorism. Yes, terrorism is an act of war. The best analog of terrorism is the state sponsored piracy of western nations in the days of sail. All the nations practiced piracy as a means to fight that were short of war. Civilian ships, merchant vessels, were the targets of plunder and destruction. It seems that the way to handle terrorists then, in an era where all the nations support them, or are too weak to prevent terrorists, then, we have to have terrorists ourselves, and engage in tit for tat terrorism with probable enemies.
Instead of invading countries with the US Marines and US Army, we instead have our own Uncle Sam Brigade to fight the Al Quds Brigades, our Bedrock to fight their "Base". The USA would deny it funds the terrorist organizations, but, if Al Qaeda hit an American target, then, the Uncle Sam Brigade would in turn blow up an Islamic religious site, or perhaps steal an oil tanker or two. There are people in American Prisons that could, no doubt, be recruited for this work.
This is my sig.
Well, in a technical sense, by definition it's no longer secret. But I'm thinking of a more narrowly drawn privilege than that. Here's the hypothetical: Someone is charged wrongly with murder. They have access to information that absolutely clears them, but it's been classified as a "state secret". Should the person truly be prevented from presenting that evidence? Should an innocent person really be sent to the gas chamber to preserve the state secret?
I am no lawyer. Perhaps there exist mechanisms to make sure this doesn't happen. But from everything I've read, the government -- the same government, by the way, that's pressing the murder charge -- could and would keep that evidence from consideration. That seems absurd.
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