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Mixed News on Wiretapping from 9th Circuit US Court 93

Posted by Zonk from the little-from-column-a-little-from-column-b dept.
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."
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Mixed News on Wiretapping from 9th Circuit US Court More

Mixed News on Wiretapping from 9th Circuit US Court

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  • a half-way proposition: wtf? Don't they mean a one-way proposition?

    • Re:HALF-way (Score:4, Informative)

      by Kjella ( 173770 ) on Sunday November 18, 2007 @07:48PM (#21401671) Homepage
      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?

      • Re: (Score:2)

        by gilroy ( 155262 )
        OK. But it's also not unreasonable to say that these "secrets" no longer are secret -- having been revealed to the lawyers -- and thus should be opened by the court. If someone claims to have seen evidence that could clear them, or convict the other guy, it's a little ludicrous to then deny them a review of that evidence.

        • Re: (Score:3, Insightful)

          by loganrapp ( 975327 )
          That opens up a can of worms - anyone given secrets can tell their lawyer and suddenly it's not secret?


          That's either silly if you don't like the state secrets privilege, and very dangerous if you do.

          • Re: (Score:3, Insightful)

            by gilroy ( 155262 )
            Blockquoth the poster:

            That opens up a can of worms - anyone given secrets can tell their lawyer and suddenly it's not secret?

            Well, in a technical sense, by definition it's no longer secret. But I'm thinking of a more narrowly drawn privilege than that. Here's the hypothetical: Someone is charged wrongly with murder. They have access to information that absolutely clears them, but it's been classified as a "state secret". Should the person truly be prevented from presenting that evidence? Should an inn

            • Well, under those circumstances, it is entirely reasonable for the same government to step in and say " don't charge this guy" or pull something even more dramatic by offering immunity to find out what he was doing the last time he went shopping in order to keep him clear.

              You see, things like this happen all the time. People of obvious guilt seem to either get off scott free and people with a huge suspicion of guilt don't get charged. We never hear exactly why they don't get charged or if they get some sort
          • no, the GOVERNMENT sent something they are claiming is a secret to a DEFENDANT'S lawyer as evidence in a case. In practical terms, it's not a state secret anymore as it was intended to be used in court in defense. That lawyer told his buddies that the UNSEALED evidence he got showed that they were illegally spying on the LAWYER involved in the case.. they sent the guy his own spying records!!! It'a about as damning evidence as you can get because the govt was spying an a defense lawyer outside legal allo
          • then somebody in the DOJ needs to go to the wall for commiting treason by exporting these documents to the lawyers... balance restored.

        • Re:HALF-way (Score:5, Insightful)

          by Kjella ( 173770 ) on Sunday November 18, 2007 @09:24PM (#21402333) Homepage
          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 [wikipedia.org] - no judge, no jury.
          b) Hold a trial, but don't reveal the evidence. Kafka already wrote the book [wikipedia.org] 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.

          • Option F (Score:4, Interesting)

            by Harmonious Botch ( 921977 ) * on Sunday November 18, 2007 @10:18PM (#21402619) Homepage Journal
            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.
            • Interesting. It might scare people from starting a case if they're not sure their evidence will be sufficient. On the other hand, it might be a good thing to make sure that the risks of revealing secrets are only taken when someone's sure enough of their position to stake their liberty on it.

              I'd like to hear a retired intelligence worker's (or a lawyer's) thoughts on this.
            • Amendment to the above:

              1) A judge would have to rule on the relevance of the state secret to the issue at hand. You couldn't be allowed to subpoena all the NSA's secrets because you had a speeding ticket.

              2) Some may consider me to be a tad cavalier with state secrets. To those I say: the world is a dangerous place, so that sometimes state secrets and individual rights may come into conflict. How we handle that problem determines what kind of country we are.
              If we subjugate the right to due process

            • Re: (Score:2)

              by Kjella ( 173770 )
              Well, I'd say that goes under the "do nothing" category. Whoever decides that is probably some executive that won't be charged with anything related to the case, he'll just be the guy with final say over the classified info. Would anyone seriously risk jail time over not scoring a conviction, when they're not risking anything by not doing it? Get teal. As for the defendant... I'm thinking in these cases he's probably up for a lifetime or two anyway, what difference would "forcing the state to reveal classif

          • Re: (Score:3, Insightful)

            by rtb61 ( 674572 )
            What you do is give some time, say six months, in which any on going activities can be restructured so that they will not be compromised by the release of 'evidence' that pertains to the case in question.

            Logically speaking all criminal activity is secret whether it is carried out by agents of the government or private individuals working to their own purposes. There is never any excuse where criminal activity once discovered should not be prosecuted, that is a direct denial of justice and one of the basic

          • d) Don't do anything - let extremely dangerous men go free because being forced to reveal the information would be even more damaging

            Is the correct answer. In the absence of a trial and the admission of evidence to open court, the state has not proved that the man involved is actually extremely dangerous. The government cannot have it both ways. If it "knows" the guy is dangerous, then it can bring him or her to trial.

            The best way to fight terrorism, is with terrorism. Yes, terrorism is an act of war.
            • I think your missing the key point of history that the civilized worlds have gotten more sane since the days of long ago. It isn't that we never done those things, it is more like we don't still do them. As for as creating terrorist, it would come back to bite us just as sure as almost every country that we have propped up has. So I don't think that is even close to an acceptable plan of action and I think it is even less likely to be effective if it isn't done by US citizens with an active interest in the

      • The charity's lawyers still have copies of the document stored in the middle east. They know exactly what the document says to the exact number of recorded calls, when they were, & how long. They initially presented the original copy to the court, which was then reclaimed by the govt & declared 'classified' after being entered into the record. However, the copies sent to the charity's lawyers in the middle east still have copies of the document.

        So in another declaration of stupidity, the US govt is

        • I have always had a theory about this situation that pretty much goes along the lines of the current administration did this on purpose. They want you to want this document released. They wan this charity to be involved with revealing state secretes. It does numerous things. for one, it shuts down the charity and puts a clear warning to the people who want to challenge them on things like this.

          but the most important reasons is that this one particular case will end up vindicating the Bush administration of

          • There will be some ruling that in the capacity of the taps, the FISA laws didn't apply because the congress cannot restrict the constitutional obligations of another branch.

            The whole point is that without the FISA laws, the DOJ has to go through the regular courts to get their warrants. IE: FISA makes it easier for the executive branch to 'do their constitutional duty'. What this debacle is about is the executive branch ignoring their duty to observe the constitution - specifically the right to be free fro

            • The whole point is that without the FISA laws, the DOJ has to go through the regular courts to get their warrants. IE: FISA makes it easier for the executive branch to 'do their constitutional duty'. What this debacle is about is the executive branch ignoring their duty to observe the constitution - specifically the right to be free from unreasonable search & seizure.

              It is the explicit purpose of the design of the government that the 3 branches balance each other. There is nothing in the US constitutio

              • Your ignoring several fundamental constructs of the constitution as well as getting the entire FISA laws out of context.

                I will admit that I am not a constitutional lawyer. So I will defer to the wisdom of 2 constitutional lawyers - the AG and the Assistant AG at the time this whole thing broke - they both indicated that the NSA spying program as it was being operated was illegal. When 2 constitutional lawyers who know all the facts both declare it illegal, I tend to believe them over non lawyers armed wit

                • Suspension of Habeas Corpus is clearly identified in the Constitution as being a power of the Legislative Branch, not the Executive Branch. It was an unconstitutional overreach of Executive power from the git.

                • I will admit that I am not a constitutional lawyer. So I will defer to the wisdom of 2 constitutional lawyers - the AG and the Assistant AG at the time this whole thing broke - they both indicated that the NSA spying program as it was being operated was illegal. When 2 constitutional lawyers who know all the facts both declare it illegal, I tend to believe them over non lawyers armed with speculation & inuendo.

                  While I understand your trust in the fine representatives running the country, I also under

  • Intentional Legislation Trumps Common Law. (Score:4, Insightful)

    by mikelieman ( 35628 ) on Sunday November 18, 2007 @07:14PM (#21401431) Homepage
    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. (Score:4, Informative)

      by Vengie ( 533896 ) on Sunday November 18, 2007 @08:03PM (#21401765)
      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)
  • If the government can't violate everyone's civil rights with complete impunity then the terrorist will win. We don't want the terrorist to win, otherwise they would take away all of our rights and freedom! See, we have to give up our freedom to keep it! I love big brother. He will protect me from the bad people, right?

    • Re: (Score:2, Interesting)

      by YourBigBrother ( 1190841 )
      Thanks. I love you too.

  • Originalize This: (Score:5, Informative)

    by vague_ascetic ( 755456 ) <(va) (at) (impietease.com)> on Sunday November 18, 2007 @07:58PM (#21401721) Homepage Journal

    "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 (Score:3, Insightful)

    by Eternal Vigilance ( 573501 ) on Sunday November 18, 2007 @08:12PM (#21401839)
    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.

    • 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.

      Not really. If Congress doesn't like how courts are interpreting the law, it has every right and the power to change that law. Of course, Congress should be doing this because they believe the people want them to do so, and it must not violate the Constitution when doing so. Also, the SCOTUS has full power to overrule the Ninth. Of course, SCOTUS is supposed to rule in way that is consistent with the Constitution but that is also a different question/topic. So my point is, the Ninth Circuit's rulings don

      • It doesn't become any harder for them legally, I agree. It becomes harder for them politically.

        I think our difference is that while you consider whether the SCOTUS may rule (and the Congress and Executive may act) in a way consistent with the Constitution a different question, I believe it to be the very heart of the question.

        Assuming Constitutional behavior on the part of any of the three Branches seems an unwarranted supposition these days (the three Branches and a free press exist precisely becaus

      • Not really. If Congress doesn't like how courts are interpreting the law, it has every right and the power to change that law.

        You're right in that SCOTUS can overrule anything that the Ninth Circuit may decide, but the interesting question--and perhaps what the OP is getting at--is, if the Ninth issues findings and/or judgments, does Congress have any recourse?

        We know that you can not be charged under a law if the act you are accused of was not illegal at the time that you did it (ex post facto laws).

  • Bad pun, I know. Being a paranoid person..( from back in the day when my friends and I would make up all kinds of code words for trying to score a doobie over the phone ) Anything you do or say has the potential to be heard by anyone else with the knowledge or technology to do so. But does the Gov't care about some teenagers trying to get some dope, or some 30-something running a port scan on his neighbor from his moms basement? ( no offence slashdotters ). No matter what you do, why not just expect it to

    • Re:i'm all "tapped" out (Score:5, Insightful)

      by ScrewMaster ( 602015 ) on Sunday November 18, 2007 @08:44PM (#21402063)
      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.

  • Never Been Comfortable (Score:5, Insightful)

    by maz2331 ( 1104901 ) on Sunday November 18, 2007 @09:56PM (#21402509)
    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 (Score:4, Interesting)

      by corsec67 ( 627446 ) on Sunday November 18, 2007 @10:03PM (#21402547) Homepage Journal
      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"?

      • "State Secrets" was formed as a dodge... (Score:5, Informative)

        by Sparky McGruff ( 747313 ) on Sunday November 18, 2007 @11:20PM (#21403063)
        It was invented as an "immune from opposition" ploy in the first place. As noted in Wikipedia [wikipedia.org],

        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.

        • Re: (Score:3, Interesting)

          by corsec67 ( 627446 )
          Ah, sweet. The gov't gets the protections against self-incrimination that the people do under the 5th amendment. Maybe this should be extended to corporations, since they are also considered "people", legally?

          Law suits would get pretty rare when nobody has to say anything bad about themselves... "What design documents specifying 40% lead in the paint of those toys? That is a corporation secret"

          Still, why can't the cases be herd In camera [wikipedia.org] if there are secrets involved?
          • Under the 5th amendment, you have the right not to testify against yourself. You can decline to answer questions. You can't order that the prosecutor hand back all the evidence he has collected about the case, and never speak of the details under penalty of imprisonment. That's just a wee bit more broad sweeping. And, it's a very effective way for a corrupt government to sweep away any accountability for even the most blatantly illegal activities. And guess what! You can't say anything about it, unles

      • Re: (Score:3, Interesting)

        by saihung ( 19097 )
        State secrets privilege in the United States is all-or-nothing. Once the government claims it, the case basically stops. While it's theoretically possible for a case to proceed after a claim of state secrets if there is still enough evidence to move the case forward, in reality state secrets is such a blow that no case survives. In other countries, such as those with real state secrets problems like Israel, state secrets results in a balancing test to determine whether the government's interests in the s
    • Exactly, if the US govt can't speak to the case, then they can't speak to the case. period. If the plaintiffs have information gained directly from AT&T by accident then AT&T needs to deal with that.. much how the Quest CEO had to deal with being accused of "insider trading" while having official government deals backed out but he couldn't talk about. I don't see why AT&T has any rights more than him.

      The alternative is that the courts start locking people up for contempt of state secrets anywa

  • It's not bad news (Score:5, Informative)

    by Kenrod ( 188428 ) on Sunday November 18, 2007 @11:24PM (#21403091)
    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/ [zombietime.com]
    • [quote:] "It's not bad news, it's good news." [comments about it:] Right! Never mind which one the writer thinks is good/bad! I realize this is not wikipedia (see NPOV [wikipedia.org]), but how hard would it have been, to use some more neutral terminology, (in the original, not the immediate parent here) like, "on the one hand..." and "then again, on the other hand..."? This would have been an alternative to framing it as "The bad news: ..." and then "The good news: ..."; one way seems to insist on revealing (and alm

    • Re: (Score:2)

      by remmelt ( 837671 )
      > The govt because the information is allegedly top secret and would allegedly harm ongoing investigations;

      Fixed that for you. There is no way for us to know whether those documents contain actual state secrets. There is no-one who can check to make sure, even without telling the court. Even knowing if there are secrets in there is secret, remember? Trias politika, checks and balances, etc.

    • Re: (Score:3, Interesting)

      by tinkerghost ( 944862 )

      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.

      The only reason the Al-Haramain lawyers don't produce a certified copy of the original is because they are being nice. Copies of all of the documentation regarding the orginal FOIA request were shipped to the middle east. They presented one of those copies to the court initially. They can produce a c

  • Hate to see the ACLU and the EFF on the same side of the same suit, given how much I hate one of them, and adore the other.

    • Re: (Score:2)

      by Copid ( 137416 )

      Hate to see the ACLU and the EFF on the same side of the same suit, given how much I hate one of them, and adore the other.
      I can't for the life of me see how you find the two organizations as particularly different. My guess is that the ACLU, if it takes a position, probably agrees with the EFF on practically every position the EFF takes.

  • Two simple thoughts... (Score:1, Interesting)

    by tiqui ( 1024021 )

    First: This is the 9th circuit. They are the most overturned court in the country, so nobody on either side of the issue should presume this is the final result.

    Second: If you think of this ruling as bad news, let's try a simple thought experiment... The RIAA drags you into court and wants to introduce as evidence their "recollections" of documents that said what you did on the internet, what files you downloaded, and what files you shared. Should this be allowed? Should you have to answer this by providin

  • Funny how I don't consider it "bad" news that lawyers aren't allowed to divulge classified information...Maybe it's just me, but "news" should not reported as "good" or "bad", because then it is no longer news.

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