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.

Comments

Really?

[PapayaSF]

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.

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.

Re:Really?

[PapayaSF]

Look, I'm not cheerleading for the NSA, or defending their dragnet surveillance, which I consider a "general warrant" and thus a violation of the 4th Amendment. I'm just saying that in this case, it looks like they got someone who did a bit more than donate a little money to a questionable organization. When the head of a major terrorist organization calls somebody in San Diego on the phone, that's a pretty big red flag. Noticing that a foreign terrorist leader is calling someone in the USA is exactly what the NSA is supposed to be doing. Did the government do something underhanded to convict Mr. Moalin? It's unclear. It's very possible that this is another Al Capone situation: they couldn't get Capone for the major crimes they knew he had committed, so they got him for tax evasion. (Capone's official story was that he made his money in the second-hand furniture business.) In the Moalin case, it does look like they convicted someone who deserved it.

Re:Really?

[ebno-10db]

It's very possible that this is another Al Capone situation: they couldn't get Capone for the major crimes they knew he had committed, so they got him for tax evasion.

And they did it without violating the 4th Amendment. Perhaps in those days school kids actually paid attention when they learned about the Constitution.

Re:Really?

[the eric conspiracy]

> 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."

Not true at all. The defense certainly can challenge the accuracy of the evidence. What they don't have is standing to challenge the government supoena of the evidence. Basically once you disclose the evidence to a third party you lose any right to claim privacy on something unless there is some kind of privilege, such as doctor patient in force.

It's actually horrifying that Slashdot is getting so wrought up over this. It's old law, i.e. United States v. Miller (1976).

Now some people have proposed that this be updated for more modern times. Something that's worth discussing. But the idea this is new is poppycock.

If you want revenge on someone ...

[Alain Williams]

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.

Speech

[Anonymous Coward]

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?

They begin to show their true colors...

[gweihir]

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_.

Poisonous tree

[gd2shoe]

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.

Re:Abuse of our legal system, plain and simple

[kesuki]

there are a lot of people who send money overseas to poor relatives. i realize in this case it's a real guy trying to fund terrorists but how is that any different from sending money to a relative who happens to be islamic and might someday take up arms against american interests over seas? where does the slippery slope begin and where is the point of no return?
there are people who can't get jobs because the big companies won't hire qualified americans and insist on h1b visas to fill jobs, it makes me sick just thinking of how corporations can do no wrong in republican eyes.

Re:Scary

[adamstew]

You're not forced to do anything. It is a tax for not buying health insurance. Your choice is to either buy health insurance or pay more tax.

Not very dissimilar to the tax credit for mortgage insurance. One could argue that the government is forcing people to have a mortgage. Not true. They are encouraging people to take out mortgages by giving people with mortgages a tax break. The choice is to either buy a mortgage or pay more tax.

It really is an argument of semantics, but if you boil that all away, you are paying more tax for not buying something.

Re:Scary

[amiga3D]

Kind of like someone putting a gun to your head and saying "pay me ten grand or I blow your brains out!" No one is forcing you to pay, you can always take the other choice. Listen to yourself. If they gave you a tax deduction for buying insurance your analogy would be fair. In fact, years ago people got tax breaks for their insurance premiums. They took that away and their answer is "buy insurance or pay a tax" so that now you get penalized on the back side as well as the front side. Think before you post.

Re:Scary

[I'm New Around Here]

More or less, yes, that is correct.

But it isn't government run, and requiring me to buy a product from a private company is in no way a tax. The fact that the fine for not buying a product is paid to the IRS does not make the fine into a tax.

Re:POLICE STATE AMERICA

[Aighearach]

It is, or will be, both, in this case. This is nothing new, even if it is pushed as "news." The way it works, if a company has records about you, those records do not belong to you. And if they are being searched, the search warrant deals with who owns the records. So a defendant can oppose admitting something as evidence, but they cannot challenge the search warrant, because it is not their record; it is a record about them. It is the phone company that has standing to challenge the search warrant itself.

I don't see why people keep making a fuss about this part, the details seem pretty clear, easy, and correct to me. I'm against the broad warrants, but I don't see why having an opinion one way or the other about if the practice should be allowed should change the factual analysis of who has legal standing to challenge it in court.

And even if he had standing, this isn't the sort of thing that would give him a new trial. Even if he had standing, and even if that warrant was improper, it doesn't bring his guilt into question. It would not, for example, get rid of the bank records of his financial transactions with terrorists.

Re:Scary

[adamstew]

Like I said before... it's an argument of semantics... getting a tax break for buying insurance is, for all intents and purposes, the same thing as having a tax penalty for not buying insurance. Either way, you are paying more in taxes for not buying health insurance...Just like you are paying more in taxes for not buying a mortgage...or paying more in taxes for not putting money in to your 401k...etc...etc...

To put it in terms a programmer can understand:

$tax=$tax+1000; if (hasInsurance($citizen)) { $tax=$tax-1000; }

is the same thing as

if (!hasInsurance($citizen)) {$tax=$tax+1000;}

Either way, if hasInsurance($citizen) is false, then the tax goes up by 1000.

Re:Scary

[amiga3D]

You really can't see the difference? If I buy a 700 dollar a month policy (what I have now) then I pay 700 bucks for that insurance. I already paid tax on that money when I made it through payroll deduction. Now if I decide not to take insurance and instead stick that money in my pocket they will take the original tax PLUS more money as a fine to penalize me for not doing what they want me to do. That is Double taxation. Now we go to the other scenario. I pay tax on the 700 dollars through payroll deduction when I make it. I pay my 700 dollars to the insurance company and at the end of the year 1 take a deduction for 700 dollars times 12 for buying Insurance. See the difference. Under scenario number two I actually get a break for doing what they wanted me to do instead of the assfucking I got in scenario one or the neutral effect that I had before the "Affordable Care" act. If they really wanted to be fair they would have used scenario 2 but instead they're fucking me. I know it and I fucking don't like it. Maybe I have to take it but I'm pissed about it and I don't give a shit who knows it.

Government shutdown, debt default

[ulatekh]

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.

Re:POLICE STATE AMERICA

[Fjandr]

There are now decisions on record allowing the use of tainted evidence so long as the police obtained it by "accidentally" violating procedural rules.

Now it's only thrown out if the defendant can prove the police violated due process intentionally, which is a much higher bar for getting evidence thrown out. Of course, with the process above, you may not even be able to see the evidence, let alone contest it.