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.
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.
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.
Q: What does the "B." in Benoit B. Mandelbrot stand for? A: Benoit B. Mandelbrot
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.
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.
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.
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.