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DOJ: Defendant Has No Standing To Oppose Use of Phone Records
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.
Anything they suck up in their endless surveillance will only ever be used AGAINST you, never for your defense.
"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 --
welcome to 1984, I mean 2014....
IANAL, but this statement seems overheated and inaccurate. Of course the defendant can "defend themselves" and "refute the evidence used against them": they can claim they didn't make those phone calls, for instance. What this case seems to say is that they can't simply have the evidence thrown out. That seems like a critical distinction.
Q: What does the "B." in Benoit B. Mandelbrot stand for? A: Benoit B. Mandelbrot
get a job at the NSA, cook up something incriminating and toss it over the wall to the CIA/.... The guy who you want to stiff will never see what you made up and so will be banged up without a chance to defend himself. Can't be bothered to get a job there, a package of greenbacks in a brown envelope to a NSA employee with health problems or going through a divorce will do the job.
Exaggerated, improbable ? Maybe, but not impossible.
The provider almost certainly has a clause in their ToS/Contract specifying that they may turn over records for law enforcement purposes. I am going to guess that legally speaking, Basaaly Moalin does not have a leg to stand on.
The state security apparatus views third-party services as a way to circumvent pesky legal red tape like warrants. We need more companies that actually fight gag orders and warrantless data requests.
It's the new world order, get used to it.
Or start removing your data stream. Operate with cash only when you can, Dont publish everything you do, etc...
Besides, why do all of you even care? you only have something to hide if you are a terrorist. You are not a terrorist are you? No? then you have no problem for us to search your house citizen....
Only you can control your information leakage.
Do not look at laser with remaining good eye.
So, if I understand this argument correctly, the only evidence that I would have standing to challenge would be evidence provided directly by me? Isn't virtually all evidence '3rd party' in that it's collected by somebody else, often from something that the suspect doesn't themselves own?
Not just a provocative Slashdot Discussion Title... But the horrible inevitability you live in today.
"Flyin' in just a sweet place,
Never been known to fail..."
This guy knew straight-up he was funding terrorist activities, and is trying to use a technicality to get out of it. This is an abuse of our legal system, but, that just goes to show what a good legal system we have. As insulting as it is that we have to entertain this "appeal", we are entertaining it, entirely seriously, which goes to show who we are as a nation and our commitment to the rule of law and justice.
Read up on the case, it's enlightening: http://www.fbi.gov/sandiego/press-releases/2013/san-diego-jury-convicts-four-somali-immigrants-of-providing-support-to-foreign-terrorists
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?
Obviously they _want_ a police and surveillance state where everybody is a perpetrator and everybody needs to be constantly afraid and keep their mouth shut. The steps to come are extreme behavioral regulations, an one-party system, removal of most personal freedoms, death camps for anybody undesirable etc. Just look a bit at history (Germany, USSR under Stalin,...), or at what North Korea is doing to see where the US will be in 20 years or so if this is not stopped _now_.
Most ACs are not even worth the keystrokes to insult them. Be generically insulted by this and ignored otherwise.
When do they become the DoI... the Department of Injustice?
He is not claiming the evidence is wrong, which is a refutation. He is claiming the evidence was collected illegally, which would allow the court to exclude the evidence. The government is claiming that he doesn't have standing to claim the collection was illegal, only the company the data was collected from can do so because the data doesn't belong to him but rather to the company.
There is no "-1 offended" or "-1 you don't agree with me" mod options for a reason.
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. This isn't exculpatory evidence that they're withholding; it's evidence that they're using, but was obtained through improper means.
This is the "fruit of the poisonous tree" argument. It doesn't matter if it's true or not; evidence illegally collected by the government can't be used in court because of the "slippery slope" precedence that it sets.
I won't join Slashcott. OTOH, If Beta goes live, I just won't be back until it's fixed. Sorry Dice.
Hillary 2016!
She'll clean the place out.
Wow. Time to start stocking up on the fourth box.
These dumb fucks in charge really plan to see this through to the end. Not cool.
Surely he won't let such an injustice actually occur. Surely he will ensure his government is transparent like he has promised. Surely Obama isn't a big fat liar, a traitor to the American people, and the worst terrorist of them all. Surely!
a conclusion or statement that does not logically follow from the previous argument or statement.
questionable abuse of customer information becomes rant on big companies - h1b and then - republicans
as if democrats have had nothing to do with the gaming of economic freedoms for their own self aggrandizing interests
How many of the top ten richest senators are democrats?
How many of the top ten richest representatives are democrats?
To paraphrase George Carlin - it is a club - and you and I are NOT in it!
The most transparent administration evah!!!!!
I hope you fucks are enjoying this.
It is really hard to tell who is a terrorist now a days. I there some kind of list that changes every few weeks or so we can know if we are participating in terrorism or just being part of the normal democratic process and supporting our party. Or is it the kind of thing where the government lets you know you are a terrorist when you are put in jail, and the secret evidence is read off against you?
Just because you are inncoent doesn't mean they can't lock you up and throw away the key. After all with more and more laws being created everyday, it is pretty much a garantee that everyone is guilty of something. And for this you will receive free room and board for life along with everyone else in the Incarcerated States of America.
You are guaranteed the right to challenge the ACCURACY and the prosecution's INTERPRETATION of the evidence used against you. You can't challenge the government's ability to get that evidence from a third party. If you could, no one would ever be convicted of anything.
Comin' again to save the motherfuckin' day yeah!
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). We believe that a kiddie porn merchant has the right to a fair trial, the KKK has the right to assemble, and Rosa Parks 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?
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.
Really?
Was it really A.H.A. who called?
Was he really calling the defendant? Or did he misdial the number?
And I could go on for pages.
What the government is claiming is that the defendant has NO RIGHT TO ASK for the information necessary to CHECK whether that is what happened, NO RIGHT TO CHECK whether the information was collected legally, and NO RIGHT TO GET IT THROWN OUT if it wasn't.
Says the government: We get to use this against you and you can't challenge it.
Seems to me that anyone being prosecuted with such information NECESSARILY has standing to challenge it. Nobody else could POSSIBLY have more standing.
To claim that the defendant doesn't have standing is to claim that NOBODY has standing. It's to claim that the government can make up ANYTHING IT WANTS, enter it into evidence, and NOBODY can check it.
The government needs to put up or shut up.
= = = =
There used to be a solid division between the intelligence services and law enforcement. That let the intelligence services collect information for fighting wars under looser rules which, though they might not be constitutional, at least didn't vaporize the constitutional rights of defendants in criminal trials.
Then the congress passed laws for, first the "drug war", then the "war on terror", that tore down this boundary. So now we have the end game, where the NSA and the federal prosecutors light their cigars with burning copies of the Fourth Amendment.
Bantam Dominique roosters crow a four-note song. Once you've heard it as "Happy BIRTHday" you can't NOT hear it that way
As long as the Department of Justice is headed by a crook of the moral turpitude of Eric Holder, it will bend the law any which way it likes. Remember that Eric Holder was forced to investigate himself after repeated perjury before congress in the Fast and Furious affair, and let himself off with a smile.
He would be the one responsible for leading the prosecution of Clapper and other NSA scum before congress and committees and stop their gamesmanship with law and order. But obviously, with dirty hands like that he is not going to do anything to his cronies.
As long as Holder remains in his position as Attorney General, corruption will run rampaging and unchecked in the current government.
it's not what is known about you, it's if and how it's used against you. if we aren't now, we will soon be in an age where it's *impossible* to retain your privacy. if you are still trying to retain your privacy, you've probably already lost. if you haven't lost, you're living an increasingly non-technological lifestyle.
i don't care what the gov't and corporations know about me. i do care if they can use that info to deny me home loans, insurance, health care, etc.
as for Mr. Moalin, i'd be outraged if he was hauled in and questioned simply because he was muslim. i'd be disgusted if he was arrested because he sent money to relatives back home. i'm not so worried about him being arrested for giving money and to, and interacting with known terrorists / murders.
Enjoy your freedom. OH WAIT
Was it really A.H.A. who called? Was he really calling the defendant? Or did he misdial the number?
From the FBI press release:
At trial, the jury listened to dozens of the defendants’ intercepted telephone conversations, including many conversations between defendant Moalin and Aden Hashi Ayrow, one of al Shabaab’s most prominent leaders who was subsequently killed in a missile strike on May 1, 2008. In those calls, Ayrow implored Moalin to send money to al Shabaab, telling Moalin that it was “time to finance the Jihad.” Ayrow told Moalin, “You are running late with the stuff. Send some and something will happen.” In the calls played for the jury, Ayrow repeatedly asked Moalin to reach out to defendant Mohamud—the imam—to obtain funds for al Shabaab.
The United States also presented a recorded telephone conversation in which defendant Moalin gave the terrorists in Somalia permission to use his house in Mogadishu, Somalia, telling Ayrow that “after you bury your stuff deep in the ground, you would, then, plant the trees on top.” Prosecutors argued at trial that Moalin was offering a place to hide weapons.
When Moalin cautioned, however, that the house could be easily identified from afar, Ayrow replied, “No one would know. How could anyone know, if the house is used only during the nights?”
Q: What does the "B." in Benoit B. Mandelbrot stand for? A: Benoit B. Mandelbrot
If we actually had a department of justice, the entire NSA would already be behind bars and awaiting trial. What Holder is running is an obedience enforcement persecution agency.
-jcr
The only title of honor that a tyrant can grant is "Enemy of the State."
Germany, 1930's was a state with rule of law. Bit by bit it was dismantled. We know the end result, but the end result was due to very deliberate chipping away at the underlying laws and through "correct" Judge selection. Really, now that the political class KNOWS that NSA and others are reading all of THEIR mail, who will challenge them ? None of them, and if they play nice, they might get a "tidbit" about their adversary. Osama Bin Laden succeeded beyond his wildest dreams, even if he is dead.
when they questioned Obama's place of birth. Philip J. Berg failed with his well-funded lawsuit he filed for the Hillary Clinton. That was complete crap. He is a voter so therefore he has standing.
"Investigate"? Eric Holder is on record for repeated perjury before congress in the Fast and Furious affair where he played God^W executive branch. There is nothing to investigate: it has already been established that he is a power-greedy corrupt crook and has proven himself to have the moral turpitude to work amongst his equals in the government. That's not even a story, it's business as usual.
Litigants make all kinds of outrangeous claims all the time. The question is: will the court buy the argument? IANAL, but it seems like the Gov't is on thin ice with this one. To claim that evidence used against someone in court is somehow magically not subject to the laws governing the legal collection of evidence is basically throwing sand in the Court's face. By extension, it's telling the Court that it too has no standing and the Gov't can do whatever it wants, and the Court can go f*ck itself if it doesn't like it. Something tells me the Court is likely to take a dim view of being flipped the bird by the prosecution.
You are not quite right since you are missing a huge chunk of information. It's not just that the evidence can't be thrown out, it's that the defense can't even see the evidence being used against them. The defense can't see what provoked the investigation either, so basically it becomes impossible to defend against.
This isn't unique to this guy, and he's probably the worst possible example. If the defense sees "On June 12th the suspect and . Officer working " won't do you shit for good. Meanwhile, the prosecution can just tell the judge "Based on the information prior to redaction we know he did it.
This is what many journalists and whistle blowers are defending against currently, in addition to this guy. This is why nearly every lawsuit filed against the government for vacuuming data has been thrown out. The Government says "What in this redacted document is illegal?".
-The wise argue that there are few absolutes, the fool argues that there are no probabilities.
Just bend over and show them your anus. Because that's all they want to see.
Why would anyone expect sympathy from Americans when he donates to a terrorist organization? If he wants to be "free" then I'm sure Afganistan, Iraq, Iran, Syria or some other failed state will welcome him.
I meant 1933 (Enabling Acts), not 1938.
I watched the ABC morning news this morning. I saw nothing about this or the government having the ability to monitor everything we do without a warrant. I did hear about who did good on some reality TV show and who got kicked off some other reality TV show the previous night and there was some dudes from some "band" I never heard of lip syncing outside the news studio in front of a small crowd that just so happens to be releasing a new album next week. They aklso did a small piece about some monuments that were being protested for being shut down. Nothing about the actual shutdown or the reasons behind it though. I guess that stuff is what Americans call news now.
Wow, so oblivious. We are screwed.
The fact that the fine for not buying a product is paid to the IRS does not make the fine into a tax.
The Supreme Court disagrees with you.
"Once we've identified and embraced our sickness, we'll have strength...and that's when we get dangerous." - John Waters
When the government chooses to conduct its affairs with such ruthless disregard for its citizens, I'm glad it's shut down, and I hope it defaults on its debt. Nothing else is going to stop these abuses.
Apparently, the percentage of people that advocate a debt default is up to 10 to 20 percent. That's a lot of support for something widely perceived as drastic and destructive.
"Once we've identified and embraced our sickness, we'll have strength...and that's when we get dangerous." - John Waters
Nobody has discussed what the Finnish Security Police gathers routinely online, but the regular local police department can compel ISPs and websites to reveal the IP addresses and identities of online forum participants without a warrant. They just have to claim they need it to do their work.
For example, some individuals were planning to organize a demonstration during the presidential Independence Day Ball. The police asked for and received the information that led them to the planners' real identities. This was just so the police could be prepared.
They started looking into this guy at least 2 months before they declared the organization he donated money to to be "terrorist". They are actually quite right to call it that, because this is the organization that went on a shooting spree in a mall in Africa a few weeks ago, but that's beside the point. They messed up their evidence and fabricated rules to make it stick anyway.
I was promised a flying car. Where is my flying car?
The point is, when you support with money donation a terrorist group, is it free speech ? or a felony ? The current police state america define it as felony through their terrorist law : in other word some political idea are not protected by free speech, whereas other (democrate and republican) are considered OK so donation are free speech expression and are legal.
Just, oh, I am guilty, but the way you found out was not fair. Booo hooo.
Look, if you have nothing to hide you have nothing to fear. The Beast is your friend.
Should the government prevail in this case it would set the precedent that search warrants are no longer need for gathering any evidence that is collected from the internet/phone companies. Thus the FBI, the state police, and even local law enforcement could use evidence gathered by the NSA without penalty.
So you better not talk about that toilet in your bathroom you replaced in an email to your friend. The local building inspector could use the NSA database to query all mentions of "bought a new toilet" of residents within his jursidiction, then use that data to declare that you have done work to your home without a permit, and demand entry to your house and force you to pull a permit and assess penalties. Same goes for that new puppy you posted photos of on Facebook. The local dog catcher could use the NSA database to determine that your cat and dog doesn't have a license.
The whole point of the legal system with prosection, defense and jury is to have a fair trial. Now fair trials have become unpopular with the U.S. because of being cumbersome. They prefer it to go straight from accusation to killing with drones including family and neighbors, but that's a somewhat Old-Testamentarian approach not covered by the U.S. constitution.
In order to keep the judicial system, particularly the prosecution which has a lot of means legally available to them, from yielding to the temptation of an unfair trial, a judge is supposed to throw the case out of court when he cannot provide a fair trial.
This is actually what happened in the case of Daniel Ellsberg, the Pentagon Papers whistleblower. After the judge learned that the White House plumbers were in cahoots with the prosecution and had burglared Ellsberg's psychiatrist on the search for dirt on him, he threw the whole case out since he considered it impossible to find justice. Ellsberg was never acquitted of the charges against him. In a way, that does not leave us with a comparison of penalties then and now.
What we do have in ways of comparison is to see what Nixon got impeached for. Which was peanuts compared to what government and NSA baldfacedly try getting away nowadays.
I wish they would just drop the fucking act and come right out and say we do whatever the hell we want so we always have something to bring you up on.
Since the landlord is the one that actually owns the house, the local police can now enter a rental home without a search warrant. Only the landlord has the legal authority to challenge the entry of the home without a warrant. At least according the logic of the DOJ.
http://en.wikipedia.org/wiki/Fruit_of_the_poisonous_tree
Think sometime.
It sounds more like he wants to have the evidence thrown out by claiming it was illegally obtained. That is not the same thing as trying to "refute the evidence".
and the Constitution when it was originally signed into law. So No, the perp has no Standing in any Court in the United States anymore. Hang em and leave em as a warning to others.
...that the Obama Administration is far, far worse at respecting civil liberties than the Bush Administration ever was?
The externalization of costs is one of the primary goals of one-percenters and those who aspire to join those ranks. Externalization of negatives is deemed as an absolute positive, in complete disregard of the ultimate impact on others: this is expected behavior for sociopaths, who eschew any concept of responsibility to anyone but themselves. So naturally, any requirement that costs not be externalized and foisted onto others is anathema, and is fought tooth and nail.
Much as we see now with the US Congress, where the faction bought and paid for by Koch & Co. are playing chicken with the global economy in an attempt at fending off one such requirement.
"What in the name of Fats Waller is that?"
"A four-foot prune."
Re-reading my previous post about externalization, I realize that it sounds like I'm painting amiga3D with the one-percenter brush, and that's actually not my intention. I think a different dynamic is at work in posts such as h(er|i)s.
I cannot find a link to it now, but I recall reading about a social experiment, where the researcher went door-to-door and just gave each household a $20 bill. He did this daily for some period of time, perhaps a few weeks. At first, the receivers of this unexpected money were very happy and surprised. As time went on, they came to expect the money, and to even be unpleasant if the researcher was perceived to be "late" in making his rounds. After the researcher stopped giving money at all, the people were quite angry and upset with him.
All this despite the fact that them receiving $20 daily was a complete fluke of luck that their neighborhood had been chosen by this researcher.
I think some of the upset about the ACA is that most people have had no understanding of how high averaged-across-the-boards insurance costs actually are. Being suddenly faced with a (sometimes substantially) higher bill for the same level of service as before, or sometimes even less service than before, is a rude shock. This shock is not at all abnormal -- the situation with health insurance in the US is seriously fubared, and many of us have been protected from that fubar-ness by either having insurance through our jobs, or by exercising our option to forgo insurance altogether. Many folks haven't had to deal with that expense -- they were, in some ways, analogous to the people getting a free $20 a day, though they might not have known it. And now they are no longer shielded from the expenses. (Setting aside that the insurance companies have also been ramping up their premiums as a whole in the run-up to the ACA's enactment.)
The ACA sucks donkey balls, in many respects. Which makes it all the more horrible that this is actually an improvement over what we've had so far (what with pre-existing condition bullshit, dropped policies, benefit caps, obscene profit margins...). My hope going forward is that, longer term, the anger expressed by amiga3D and others will lead to increased public pressure for a saner insurance system.
"What in the name of Fats Waller is that?"
"A four-foot prune."
Perhaps I wasn't clear. I wasn't asking these questions. Their answer doesn't matter.
The discussion is not about whether these guys are innocent as the driven snow or guilty as sin.
The discussion is about whether the GOVERNMENT is following the rules, what those rules are, and how the GOVERNMENT's claim and the rules affects all of us in the future.
The government always uses the worst scum they can find to establish a precedent to use on us little guys later. That's why, for instance, it's child pornographers and molesters they go after when they're attacking free speech, censorship of the Internet, or the privacy of your electronic records and communications.
You don't get to relax the rules just because the accusation is great. If anything, it's when the accusation is greatest that it's most important that the accused's rights be protected.
The government doesn't get to break the rules itself when it's going after rule-breakers. The legal system is about the RULES for handling breakers of the rules. Trying to get the rule-enforcers to enforce the rules on themselves is extremely difficult. The only thing we've found to work even moderately well, so far, is to make them LOSE when they break the rules themselves. Thus the doctrine of "fruit of the poisoned tree" - the suppression of evidence collected illegally.
The result, of course, is that when the police and prosecutors break the rules, the accused goes free, even if he's guilty as sin. Yes, if he's an offender and likely to repeat or escalate in the future this is bad. But a runaway government is worse.
He's a child molester? A runaway government is worse.
He's a serial murderer? A runaway government is worse.
He's part of a conspiracy to set off a hydrogen bomb on Manhattan Island? A runaway government is worse.
Because a runaway government descends into tyranny. It kills or maims anyone it wants. It steals the resources of anyone it wants. It controls the lives of anyone it wants, for its own benefit and their detriment. It does it to everyone, in detail. Until it is stopped.
Without such tools as suppression of evidence and "standing" to compel revelation of the information necessary to determine whether evidence should be suppressed, it almost certainly won't be stopped in our lifetime, short of a violent revolution - after which the replacement would likely be even worse.
Bantam Dominique roosters crow a four-note song. Once you've heard it as "Happy BIRTHday" you can't NOT hear it that way
While I largely agree, the problem is that some instances don't fall neatly on one side of the law or the other. This is especially true with international crime, terrorism, and war. I'd agree that it's wrong for the NSA to get unconstitutional (IMO) "general warrants" for (e.g.) all of Verizon's phone records for three months. But if the NSA is wiretapping a Somali terrorist in Somalia, and notices that he keeps talking to people in San Diego, it doesn't seem like the descending boot of tyranny for them to call the FBI and say "Check out these guys." As long as the FBI then gets all the warrants it's supposed to, I think I'm OK with it.
Q: What does the "B." in Benoit B. Mandelbrot stand for? A: Benoit B. Mandelbrot
... if the NSA is wiretapping a Somali terrorist in Somalia, and notices that he keeps talking to people in San Diego, it doesn't seem like the descending boot of tyranny for them to call the FBI and say "Check out these guys." As long as the FBI then gets all the warrants it's supposed to, I think I'm OK with it.
But that's not what's at issue.
What's at issue is whether the defendant can force the prosecution to prove the agencies followed the law and the constitution.
The government claims he can't.
I say that's bogus. The prosecution has to put up or shut up.
Bantam Dominique roosters crow a four-note song. Once you've heard it as "Happy BIRTHday" you can't NOT hear it that way