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."

Comments

Intentional Legislation Trumps Common Law.

[mikelieman]

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.

Re:Intentional Legislation Trumps Common Law.

[Vengie]

You are incorrect. If the legislature uses "magic words" that were defined at common law, the legislature INCORPORATES those common law principles UNLESS the legislature SPECIFICALLY (and intentionally) abrogates the common law definitions by defining new ones. See e.g. Wells v US, Neder v. US, and any extortion cases (e.g. Sun Diamond)

Re:HALF-way

[Kjella]

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?

Originalize This:

[vague_ascetic]

"You seem...to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men, and not more so. They have, with others, the same passions for party, for power, and the privilege of their corps. Their maxim is 'boni judicis est ampliare jurisdictionem,' and their power the more dangerous as they are in office for life, and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots...I know no safe depository of the ultimate powers of the society but the people themselves; and if we think them not enlightened enough to exercise their control with a wholesome discretion, the remedy is not to take it from them, but to inform their discretion by education. This is the true corrective of abuses of constitutional power."

Thomas Jefferson, letter to William Charles Jarvis, September 28, 1820

"An avidity to punish is always dangerous to liberty. It leads men to stretch, to misinterpret, and to misapply even the best of laws. He that would make his own liberty secure must guard even his enemy from oppression; for if he violates this duty he establishes a precedent that will reach to himself."

Thomas Paine, "Dissertations on First Principles of Government", 1795

"Perhaps it is a universal truth that the loss of liberty at home is to be charged to provisions against danger, real or pretended, from abroad. "

James Madison, letter to Thomas Jefferson, May 13, 1798

A lot depends on the Ninth Circuit

[Eternal Vigilance]

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.

Re:Big Brother is my friend.

[vague_ascetic]

A rather vehement strain of the meme:

"But BillJeff did it first"

which again provides anecdotal evidence that two wrongs do indeed make a righty.

Another lesson that has been finally ground into America's consciousness by the last seven years of governmental overreach is one that has been preached to us for over twenty since, since the Reagancomedy:

Republicans do it better the Democrats

This has now been demonstrably proven to be true in the instances of

• putrescent pure pro partisan politiking
• boot-stomping Natural Liberty
• using sodomy as an interrogatory methodology
• peeping in the public pottys
• defaming the rectitude of honourable humans who possessed the temerity to rise in dissent
• promulgation of revisionist ideations to the extent of the exectuive power, which seems to acquire an ability to exist without the strictures of the U.S Constitution whenever a Republican has ascended to the Presidency
• deficit spending; as it is well known that Democrats Tax and spend; yet that is a far far better practise than to just spend without end, while heavily dampening down the flow of funding coming into the government.
• elevating a personal version (Per.Version) of the Creative Force to a position of dominance over the civil government

These are but a few of the many examples of what happens with Conservatism Gone Wild. Yet you seem to be admitting an instance where the Republicans are no better than the Democrats here, and that is when it comes to defending liberty.

So what is the purpose of you ravening spew? Are you claiming that The Democrats Are The Lamer of Two Evils? Given my near seven year experience with the tyranny of GW Bush, I've grown nostalgic for a lamer of evils.

Re:i'm all "tapped" out

[ScrewMaster]

why not just expect it to be listened to?

Well, sure, that's just basic security. But this isn't really about the specific issue of telco complicity ... 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.

Re:Big Brother is my friend.

[FunWithKnives]

You would rather live a coward than die a free man, then?

Your opinion seems to be that of the majority in this country, and I believe that sentiment has a lot to do with how we have gotten to where we are, collectively. Do not attempt to raise an ideal higher than your personal interests. Just keep being passive. And remember: Consume, consume, consume! No one likes a louse, right?

Re:Big Brother is my friend.

[Anonymous Coward]

How can you have freedom without privacy? It doesn't make any sense. It's like saying "terrorists take away our cars, but the government only takes away our gasoline". One is no good without the other.

Re:HALF-way

[Kjella]

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.

Re:Big Brother is my friend.

[timmarhy]

I think what you are pointing out is more a failing of leadership then a failing of republican ideals.

besides, tax and spend IS a shitty economic policy, and the last few years are too complicated to really say how much better democrats would have done.

Never Been Comfortable

[maz2331]

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.

Re:Never Been Comfortable

[corsec67]

Or, even if it is "State Secrets", why can't it be used in the trial anyways?

Are people just accepting of the fact that "State Secrets" also means "immune from opposition"?

Option F

[Harmonious Botch]

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.

"State Secrets" was formed as a dodge...

[Sparky McGruff]

It was invented as an "immune from opposition" ploy in the first place. As noted in Wikipedia,

The privilege was first officially recognized by the U.S. Supreme Court in a 1953 decision, United States v. Reynolds (345 U.S. 1). A military airplane, a B-29 Superfortress bomber, crashed. The widows of three civilian crew members sought accident reports on the crash but were told that to release such details would threaten national security by revealing the bomber's top-secret mission.[snip]

As a footnote to the founding case establishing the privilege, in 2000, the accident reports were declassified and released, and it was found that the argument was fraudulent, and there was no secret information. The reports did, however, contain information about the poor state of condition of the aircraft itself, which would have been very compromising to the Air Force's case.

It's worth keeping that history in mind when reading about how this fine administration is throwing the "state secrets" claims around in what could be very damaging cases.

It's not bad news

[Kenrod]

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/