Slashdot Mirror
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 --
The argument makes sense to me. AFAIK a defendant has the right to know specifically how the evidence against him was collected, and to be given any potentially exculpatory evidence. If you want to claim "national security", then you can't prosecute.
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..."
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?
Touché.
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.
A little more background, courtesy of the Daily Mail. The Slashdot summary is a bit vague, referring to "donating a small sum of money to an organization that the federal government considered terrorist in nature." 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." You may recall al Shabaab as the group behind the recent slaughter at the Westgate Mall in Nairobi. So to say "an organization that the federal government considered terrorist in nature" is to omit some rather important background. By any rational definition, al Shabaab is certainly a terror group.
Q: What does the "B." in Benoit B. Mandelbrot stand for? A: Benoit B. Mandelbrot
One generation sees "something" and all the rights get weakened to the point of been useless. Color of law, giving more weight to the domestic surveillance findings, a NSL, our allies use the same methods, they where going to protest without the city paperwork and telling the police first.
Now the legal rights after arrest are been hurriedly closed off.
No basic rights to protest, no basic rights during the investigation and interrogation, no legal secrecy standing before the court, no public trial with fully presented evidence, make a fuss and other medical options become available.
Domestic spying is now "Benign Information Gathering"
One of the big corner stones of the criminal justice system is that both parties have equal access to the evidence and witnesses. If you were charged with murder, the prosecution couldn't have a surprise witness appear, give testimony, and then leave without your lawyer having the ability to cross-examine. If the prosecution has a potential witness, they need to disclose this to the defendant's lawyers ahead of time so that the defense can prepare.
What the government is essentially saying with this is "we can present 'a witness' (the phone records) but won't allow the opposing side to 'cross-examine' said evidence to cast any doubt that it isn't true." So the jury will be left with the government's side ("these phone records show he's guilty") and the defense's side (shrugs). Who do you think they'd go with?
Even worse, the article states that the government looked into the defendant's actions again and concluded he had no link to terrorism. This was done before his trial and was kept from the defense. Going back to the murder analogy, this would be like the police finding a gun with prints on the scene, realizing the prints were NOT the defendant's, and then hiding said gun so that the defense couldn't use it to acquit. Actions like this undermine our criminal justice system.
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This guy knew straight-up he was funding terrorist activities
I don't give a damn. I could care less if he's as guilty as sin. The Constitution is more important than catching some two-bit financial contributor to an organization the US government has labelled terrorist. You want the terrorists to win? Just keep wiping your ass with the Constitution. Then the terrorists win by getting us to abandon what's been the organic law of this country for over two centuries, and which every school child in this country is taught the importance of (apparently many people didn't pay attention in class).
As insulting as it is that we have to entertain this "appeal"
We won't know if it's being seriously entertained until he's granted a new trial, and the court takes his case seriously.
And what's insulting about it? I'll posit that he's guilty. It's still a defense attorney's obligation to try to get his client off. It wouldn't be the first time that evidence was tossed out because of a Constitutional violation. It's more important to defend the Constitution than it is to not let one or two criminals off.
Read up on the case, it's enlightening
What better source to get unbiased information than the FBI. Even believing everything the FBI says, this case is penny ante. Why not give them the same strict punishment that HSBC got for knowingly laundering billions of dollars over a period of years for terrorist organizations? I'd worry a lot more about that than a contribution that most people could put on their credit card.
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?
You may recall al Shabaab as the group behind the recent slaughter at the Westgate Mall in Nairobi.
As terrible as that was, I wish I could say that qualified as a major slaughter in Africa. Are you aware of what's happened in, for example, the Congo in recent years? The Second Congo War was the bloodiest war since WWII, and most Americans have never even heard of it. I don't know if the US should have gotten involved to stop it, but it didn't. Now we're sanctimonious about a mall shooting? That's called a political agenda, not a concern for human life.
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.
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.
Actually, the method is also important. If the government claims they intercepted an email sent by the defendant, how does a jury know whether he actually sent that email if the defense can't subject the government's methods to scrutiny. For all they know the government mixed up the email addresses/etc.
You can't just present evidence against somebody in court without defending the methods under which the evidence was collected.
The list of banned organizations are not public. The Electronic Frontier Foundation could be considered a "terrorist organization" under a secret NSA list. Once you donated to that organization and later the government declares that organization is considered "Terrorist organization" it is too late. It is now for you to sell all your belongings to get a good lawyer just to stay out of jail.
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