By Dan Eggen Washington Post Staff Writer Monday, August 30, 2004; Page A21
The Justice Department has argued in a recent court case that librarians, booksellers and other businesses can easily challenge a controversial provision of the USA Patriot Act by appealing to a super-secret court that approves surveillance of terrorists and foreign intelligence agents.
The only problem, according to a document released last week, is that the same court does not allow anyone but government attorneys and agents inside its doors.
The rules governing the Foreign Intelligence Surveillance Court also do not include procedures for outside litigants to file memorandums or otherwise influence a case, according to a copy of the rules obtained by the American Civil Liberties Union.
Jameel Jaffer, an ACLU staff lawyer, said the court rules "do not seem to contemplate the possibility that anyone other than a government attorney may appear before the court," nor do they allow for outside attorneys to file motions to quash the subpoenas the court issues.
The surveillance court was established as part of the Foreign Intelligence Surveillance Act (FISA) of 1978 and has operated in almost total secrecy since then. Justice Department statistics provided to Congress indicate the court approved more than 1,700 searches and seizures last year, eclipsing the number of traditional criminal wiretaps authorized by local and federal courts.
The five-page list of rules gives a rare glimpse into the inner workings of the FISA court, outlining the powers available to each judge and the procedures for applying for warrants and other operational details. The rules were provided to the ACLU by the FBI, which indicated they were the most recent FISA court rules in the agency's possession, Jaffer said.
A duty of the court is to oversee one of the most controversial provisions of the Patriot Act, Section 215, which allows the FBI to obtain "tangible things" from businesses during counterterrorism and counterintelligence investigations. The broadly worded section has raised the ire of librarians, in particular, because it would allow the FBI to seize library records while forbidding the library to publicly reveal the search.
Attorney General John D. Ashcroft said in September that the section had never been used, but recent court filings indicate the FBI may since have sought to use it.
In a Michigan lawsuit filed by the ACLU, Justice attorneys have argued that anyone targeted under the provision would have the ability to contest the issue. "If and when a Section 215 order is served on these plaintiffs, they will have ample opportunity to challenge it before the court that issues the order (i.e. the FISA Court)," the attorneys wrote in a July brief.
But the court's rules say that only attorneys empowered by the attorney general or government agents may appear before it, and there is no mention of accepting outside motions or briefs.
A Justice Department spokesman declined to comment last week, citing ongoing litigation.
Patrice McDermott, deputy director of government relations for the American Library Association, said the government's arguments "appear to be a red herring."
"They keep saying you can challenge it, but they have never indicated how anyone could actually do so," she said.
Posted by Dagonee (Member # 5818) on :
Actually, you do. People die if search warrants are leaked ahead of time. In fact, almost no warrant can be challenged before it's executed.
As to subpoenas, they can always be challenged. I actually think this is a red herring from the ACLU. If they can't be challenged, the provision will likely be struck down. It may be that the court has not promulgated rules for this because none of these subpoenas have been served yet.
Dagonee
Posted by Kayla (Member # 2403) on :
You know what, I think an arrest warrant for a mobster and the reading list from local library are two entirely different things. One I'm comfortable with. The other reminds me too much of big brother. I don't trust this government. Why would I want them to have that much power?
Posted by Dagonee (Member # 5818) on :
The federal government has had the power to subpoena library records for as long as we've had grand juries. This is not a new thing.
Dagonee
Posted by Kayla (Member # 2403) on :
While it may be theoretically true, it's scary that they had to come up with Section 215 to allow the searches and then make them secret. I'm much more a sunshine kind of person and I'd rather know what the government was doing. I mean if it had to be kept a secret, how would we have ever known what Bill Clinton bought?
Posted by newfoundlogic (Member # 3907) on :
But if you know everyone knows, including people who could use that information to harm the United States. I'd like to have access to all the information that the CIA has in order to make a better decision in the election, but if I did make Americans would probably die as a result. I don't like secrets but I certainly understand their necessity.
Posted by Dagonee (Member # 5818) on :
So you want the government to make public it's investigations as they occur?
Dagonee
Posted by bunbun (Member # 6814) on :
I don't think anyone has suggested so far that the government be forced to tip its hand in the case of high risk investigations. However, I have some concerns about upholding basic constitutional requirements like meaningful notice, opportunity to be heard and the right to counsel in cases where someone's property can be essentially be converted or confiscated by the government.
[ August 30, 2004, 10:05 PM: Message edited by: bunbun ]
Posted by fugu13 (Member # 2859) on :
I believe its a Secrets Court not a Secret Court. Its both pretty well documented, and even much of its actions are well documented.
Posted by Dagonee (Member # 5818) on :
And so far there's been no showing that these rights aren't protected.
A warrant can't be contested in advance anyway. A subpoena could be, but generally only by the record-holder, not the people who's information is in the record.
Dagonee Edit: And the court has existed for 16 years, and the government has had the same powers with respect to foreign espionage cases.
[ August 30, 2004, 10:13 PM: Message edited by: Dagonee ]
Posted by aspectre (Member # 2222) on :
The US intelligence services have proven themselves quite capable of torturing and murdering "disappeared" detainees in Iraq and Afgahnistan. As well as "disappearing" eg Canadian citizens in the US to countries such as Syria for further questioning.
[ August 30, 2004, 10:20 PM: Message edited by: aspectre ]
Posted by Dagonee (Member # 5818) on :
True. Of course, no one's talking about the U.S. intelligence services in this thread.
Posted by bunbun (Member # 6814) on :
quote:A warrant can't be contested in advance anyway. A subpoena could be, but generally only by the record-holder, not the people who's information is in the record.
Really? This is really the rule, no matter how the records are kept, no matter who the record holder is? Under all circumstances?
Personally, I would be very reticent to make such a sweeping statement regarding an individual's standing to keep his or her records private, especially considering the extreme care legislatures have gone to assure priviledge for medical and mental health care records.
And I guess you would also argue that whatever harm might be worked by any disclosure of any record anywhere would be tantamount to the state's interest in advancing the aims of law enforcement?
Interesting. I wonder how the Framers would answer that question.
Posted by Dagonee (Member # 5818) on :
quote:Really? This is really the rule, no matter how the records are kept, no matter who the record holder is? Under all circumstances?
I said “generally.” It’s used to mean that this is the rule in most cases, but that there are exceptions. Certainly, this is the rule for libraries, bank records, phone records, and purchase histories at most stores. Information revealed to a third party carries no expectation of privacy, absent an overriding privilege.
quote:Personally, I would be very reticent to make such a sweeping statement regarding an individual's standing to keep his or her records private, especially considering the extreme care legislatures have gone to assure priviledge for medical and mental health care records.
And yet a gunshot wound must be reported, as must revelations of child molestation in therapy in some states even when it’s not ongoing. So it’s clear that the areas with one of the most rigorous statutory protections are not protected absolutely.
quote:And I guess you would also argue that whatever harm might be worked by any disclosure of any record anywhere would be tantamount to the state's interest in advancing the aims of law enforcement?
Hmm. Interesting reading of my words, considering my position is that the subpoenas are valid only if they can be challenged.
quote:Interesting. I wonder how the Framers would answer that question.
Considering how little the Framer’s answers seem to matter in constitutional interpretation these days, I doubt it matters.
Penumbras, anyone?
Dagonee
Posted by Bob_Scopatz (Member # 1227) on :
quote:But the court's rules say that only attorneys empowered by the attorney general or government agents may appear before it, and there is no mention of accepting outside motions or briefs.
Dag, Am I interpreting this correctly?
1) The FBI turns over what they call "the most recent rules they have..." In other words, not even the FBI is entirely sure what this court's rules are?
2) This court has rules saying who can appear before it and that the limits are you must have prior approval of the US Attorney General or be a "government agent?"
3) Then we have the statement at the end that says "we've been told that people will be able to challenge, but no one has told us how that will be accomplished.
If I'm correct, this adds up to a Judicial system, ensconsced inside the Justice Department (at least I've read that somewhere before...) and they don't have any set rules.
Is anyone else reminded of the military tribunals that are going on right now -- the judicial "process" is being made up as they go along. There are conflicts of interest among the panel of judges and there's just one person who decides whether those are a problem or not.
Here's the deal. Trials are expensive. Eventually, in this country, most people get due process. If you screw up the process at the beginning, some judge or panel of judges down the line is going to correct it. In the mean time, you've spent millions and blown the whole thing by denying people their rights not just to a fair trial, but to any sort of trial.
I realize this court just sits there deciding whether a warrant should be issued or not. And that process is usually done without any sort of defense.
But what the ACLU is fighting in this whole thing is not a red herring -- it's the fact that this court has apparently NO published procedures or guidelines. That means that it can be used, manipulated and essentially there is no check or balance.
If it indeed resides within the Justice Department, one of the most important checks/balances -- an independent judiciary -- is completely thrown out the window.
So, while this may be a wonderful "tool" for people who want to stop terrorists at any cost, it is in fact something that goes against the basic foundations of our system of government.
And, incidently, it is saying that one is not able to obtain a warrant in the usual way when dealing with this sort of thing. Why? Because the evidence is secret. That means that the evidence used to obtain the warrant in the first place will never see the light of day -- in all probability.
In other words, it has the potential for major abuse. Secret evidence can be used by the government against ANYONE. Who is there to stop them? Not the judges who sit INSIDE the Justice Department, certainly. They are already compromised.
Not the ACLU, because the evidence is SECRET, they can't get it.
Not the Accused -- the Evidence is secret so the defendant can't see it. Nor can the defendant's lawyer unless the Atty General approves first.
I'm sorry, but this is so open for abuse I'm not comfortable with ANY adminstration having this power.
And look at what Ashcroft did. He said that the thing had never been used. Then, what was it, a week later, the FBI tried to use it.
Um...FBI...Justice Department...
Court...Justice Department...
Ashcroft... Justice Department...
Oh, heck, I don't believe in coincidences. I must be imagining things.
Silly me.
Isn't Ashcroft the guy who ordered the "naked statues" removed or clothed or something?
Yeah, this guy is sane and stable.
He's protecting us from art for God's sake...literally.
I want him deciding what's proper in a Judicial system like I want a 3 year old deciding what buttons to push on the stove.
Sorry...this whole thing smells very bad.
Posted by Dagonee (Member # 5818) on :
Ask yourself why the ACLU is attacking this now when it's existed since 1978? Because it used to be only foerigners affected? Or because they have problems with Bush and Ashcroft for other reasons?
As we saw with Mossaui, the rights of defendants to see evidence against them and to call witnesses is still being enforced in this country.
Magistrates that issue warrants generally are not seeing opposing parties. They're seeing the government requesting a warrant.
Grand juries issue subpoenaes all the time. They are attacked not in the grand jury, but in court.
And you've denied no one a fair trial. The proceedings at issue are not part of trials. They may be the subject of motions hearings in trials, or appeals from trials, but they happen long before the trial occurs.
Dagonee
Posted by Bob_Scopatz (Member # 1227) on :
Dag,
For all I know, the ACLU has been fighting this since 1978. I know they've been fighting it for at least the past 4 years. And the Patriot Act did actually make this situation worse, so there's some reason to ahve been pursuing it since 2001 with renewed vigor.
That is, of course, in addition to the loathing for Ashcroft that any organization dedicated to liberty might have.
And I think I adequately addressed the fact that this court SHARES certain attributes with other courts (like hearing only one side before issuing a warrant or subpoena).
The denial of a fair trial comes in when:
1) it becomes impossible to question the evidence on which the warrant or subpoena was based. 2) that evidence is not made available to the defendant or the defendant's lawyer.
The other thing that really bugs me about this court is that it is not an independent judicial body. That's not right by anybody's reading of the US Constitution. And, it's not a benign practice.
In a normal criminal court situation, the state's attorney or the police have to seek a warrant from a judge who also hears trials. That person is not likely to hear this same case, usually, but they know what the rules of evidence are because they live them every day not just from the side that grants warrants or subpoenas, but also from the side that has to sit there and adjudicate cases. So that judge issuing a warrant is well aware of what this all will look like in a trial. There judgement is tempered by the fact that they know whether they would themselves throw this whole thing out of court if it was brought before them. If nothing else, their own colleagues might bring their judgement into question if they keep giving warrants out on evidence that subsequently ends up getting the case thrown out of court. Eventually they could even be dismissed from the bench if things got out of hand. Unlikely, true, but there's a check and balance there.
The judges ensconsced inside this court, hearing secret evidence, are not accountable and their judgement is not tempered by the outcomes of their cases. The Justice Department is only likely to complain if the judges in ITS court fail to give them enough warrants in a timely fashion. And then what? A new judge, more willing to play ball, is appointed by the President to this court?
I'm sorry, but the more I think about it, the more this particular set up sounds like an abuse waiting to happen.
And the fact that it has existed since the Carter administration doesn't make me feel better about it. Nor should it make anyone else feel better about it.
But, remember this...no prior Administration has even talked about going after library records. So, there is reason to question what uses are being made of this court now, and what uses are planned.
I'm really sort of surprised that you think this thing is no big deal.
Posted by bunbun (Member # 6814) on :
I would advise, Dagonee, that you read up on Section 215 of the Patriot Act. The point of the article posted was that the Foreign Intelligence Surveillance Court's abilities to subpoena information under Foreign Intelligence Security Act of 1978 was expanded recently in Section 215 of the Patriot Act.
Under Section 215, the government makes a bare showing that the information is needed in an ongoing terrorism investigation, and they can get "any tangible" article. There's no mention of any priviledge in the section. Unfortunately, no one will be on hand to argue for their inclusion since the court is closed to every one but government attorneys and agents. To make matters worse, the target of the subpoena gets hit with a gag order.
Sincerely, how do you defend such a request without breaking the law? How would an attorney representing someone would gets a Section 215 request even be permitted to know about this?
Just curious.
Unrepentant Bunbun
[ August 30, 2004, 11:33 PM: Message edited by: bunbun ]
Posted by Dagonee (Member # 5818) on :
quote:And the Patriot Act did actually make this situation worse, so there's some reason to ahve been pursuing it since 2001 with renewed vigor.
quote:The point of the article posted was that the Foreign Intelligence Surveillance Court's abilities to subpoena information under Foreign Intelligence Security Act of 1978 was expanded recently in Section 215 of the Patriot Act.
It expanded the situations in which this may be done; it did not expand what could be produced.
quote: In a normal criminal court situation, the state's attorney or the police have to seek a warrant from a judge who also hears trials.
This just isn’t true. Many warrants are issued by magistrates who have that as their primary job, or have no trial duties at all.
quote:But, remember this...no prior Administration has even talked about going after library records.
As best I can tell, this administration hasn’t talked about going after library records. The library card is used by opponents as an example of entities that could be ordered to turn over items. This power has ALWAYS existed, but it’s being touted as a new thing as a scare tactic based on the “any person or entity” language.
quote:Under Section 215, the government makes a bare showing that the information is needed in an ongoing terrorism investigation, and they can get "any tangible" article. There's no mention of any priviledge in the section. Unfortunately, no one will be on hand to argue for their inclusion since the court is closed to every one but government attorneys and agents. To make matters worse, the target of the subpoena gets hit with a gag order.
Sincerely, how do you defend such a request without breaking the law? How would an attorney representing someone would gets a Section 215 request even be permitted to know about this?
No one can assert privilege when a subpoena is issued. Hell, most subpoenas issued in this country ARE NEVER REVIEWED BY A JUDGE until they’re challenged. Privilege is asserted when challenged. If the attorney can’t challenge in the secrets court, then it can challenge in a District court, just as the law itself is being challenged now.
Dagonee
Posted by TomDavidson (Member # 124) on :
"As best I can tell, this administration hasn’t talked about going after library records."
Some librarians have come forward to say that library records have been requested, but of course they're not permitted to say which, when, or why. I'll see I can find more info for you on this.
Posted by fugu13 (Member # 2859) on :
After doing a bit of reading:
The ACLU isn't "after" the secrets court (except inasmuch they probably don't like the idea). They're after the PATRIOT act, specifically section 215, or even more specifically, the justice department's characterization of that section.
The Justice Department is, in order to defend in a case, arguing that section 215 requests may be defended against. The ACLU is trying to figure out how one would do this, and is coming up with no way whatsoever.
So if this "sort" of request (though its really a whole new sort of request in many ways) isn't typically something to defend against, then its the justice department that is mistaken: the ACLU is just after proviing or disproving the justice department's statement that 215 requests can be defended against.
Posted by aspectre (Member # 2222) on :
How can an attorney challenge in DistrictCourt when it is illegal for the plaitiff to inform his/her attorney that a warrant was served?
How is the person supposed to even verify that the warrant is valid? Recently, there was a home invasion robbery in which the miscreants dressed as and impersonated police officers. Under the "secret warrant" system, the victims would have been forbidden to call the police.
What kind of messed up mind would start with the legal presumption that all judges and attorneys are traitors except those approved by a single individual, the politically appointed USAttorneyGeneral?
[ September 01, 2004, 06:00 AM: Message edited by: aspectre ]
Posted by Dagonee (Member # 5818) on :
Fugu, the "request" isn't defended against when it's made, it's defended against after it's served but before it's complied with.
If I serve you a subpoena, you can either comply by the date given or challenge the subpoena in court.
What you can't do is go to the judge as I'm seeking a subpoena and stop it from being issued. The justice department characterization is in no way inconsistent with this.
Dagonee
Posted by fugu13 (Member # 2859) on :
quote:"If and when a Section 215 order is served on these plaintiffs, they will have ample opportunity to challenge it before the court that issues the order (i.e. the FISA Court),"
From the mouth of the justice department, to the ears of babes. Its this statement the ACLU is attempting to prove or disprove, and your arguments don't seem to have supported it.
Posted by Dagonee (Member # 5818) on :
quote:How can an attorney challenge in DistrictCourt when it is illegal to inform the plaintiff's attorney that a warrant was served?
Because attorney/client communication is privileged. Even if the client were breaking the law by going to his attorney (which no one has established he would be), they couldn't prosecute him for it.
quote:What kind of messed up mind would start with the legal presumption that all judges and attorneys are traitors except those approved by a single individual, the politically appointed USAttorneyGeneral?
1) The judges on the FISA court are NOT appointed by the US Attorney General.
2) There's no presumption that these people are traitors. There is a presumption that the more people that know something, the less likely it is to remain secret.
Dagonee
Posted by Dagonee (Member # 5818) on :
quote: quote:"If and when a Section 215 order is served on these plaintiffs, they will have ample opportunity to challenge it before the court that issues the order (i.e. the FISA Court),"
From the mouth of the justice department, to the ears of babes. Its this statement the ACLU is attempting to prove or disprove, and your arguments don't seem to have supported it.
My argument is not that the opposition will be made in the district court, it's that EVEN if the ACLU's claims are true (that the FISA court will not hear challenges), the district court will still be available JUST AS IT IS NOW. As it is, no one has ever been denied the right to challenge one of these orders.
Further, that statement makes it clear that opposition happens when it's served, not when it's requested. In fact, my arguments support this very well.
Dagonee
[ August 31, 2004, 10:56 AM: Message edited by: Dagonee ]
Posted by TomDavidson (Member # 124) on :
Dag, can you give me a concrete example of how it would be possible and practical for someone to challenge a 215?
Posted by Dagonee (Member # 5818) on :
I don't know the procedures. But generally it works like this:
1.) You get an order to produce.
2.) You meet with your attorney to see if you have grounds to quash it.
3.) If so, you contact the court which issued it and file a motion to quash.
4.) The judge either rules or holds a motion hearing.
5.) The judge rules.
6.) The loser appeals if desired.
In this case, the only difficulty is with step 3. If the court won't hear a motion, then you would file in District court. Or, you could give notice of intent to move to quash, document the trouble getting in touch with the court, and use it as a defense in the contempt proceeding.
Since the contempt proceeding would require appearance, there would be a chance to be heard then. Given this fact, it's likely the court would allow you to appear to challenge. I'm sure the FBI would prefer challenges are heard in the secret court, anyway.
Let's be clear - no one has been denied the right to challenge. The ACLU is attacking the law because they don't know precisely how to conduct a challenge. At minimum, this raises serious ripeness issues with the ACLUs suit. At worst, it's a cynical attempt to garner publicity on an issue that may or may not exist.
If the Justice department wins this case, and the judge relies on the stipulation that they can be challenged, then a servee WILL be able to challenge, somehow, someway.
Dagonee
Posted by TomDavidson (Member # 124) on :
"Given this fact, it's likely the court would allow you to appear to challenge."
Say whom? Why would they have to do this? And who would ever find out if they didn't?
Posted by Dagonee (Member # 5818) on :
The only way to enforce such an order is via contempt. Contempt allows someone to be jailed for failing to produce. Upholding the order of contempt requires a hearing. At that hearing, the validity of the order is an element of the crime of contempt. Punishment for the contempt would end as soon as the servee produces.
So waiting for the contempt hearing, with a contingency to produce if the servee loses, would certainly afford a right to challenge at no risk of jail.
Dagonee
Posted by TomDavidson (Member # 124) on :
But, to clarify, the person being arrested for contempt here is NOT the person whose rights and privacy is at risk, but rather the person who's being asked to turn over that information?
It seems like this would require substantial risk, and would be rather unlikely.
Posted by Dagonee (Member # 5818) on :
Yes. Except for a few instances of privilege, only the one being asked to produce generally has standing to challenge.
To put it very plainly and in the extreme case, police could come into your house with no warrant and search for evidence that I committed a crime. Anything they found would be inadmissible against you, but admissible against me (barring an unusual circumstance such as me visiting you).
Further, it's generally recognized that information disclosed to a third party does not carry an expectation of privacy sufficient to raise 4th amendment protections.
None of this is Patriot-act specific. It applies to search and seizure law generally.
Dagonee
Posted by TomDavidson (Member # 124) on :
The difference, however, is that this requires that the person or organization being pressured to release the data risk contempt charges before they can even TRY to challenge the validity of the order -- and they cannot EVER reveal that they did so, nor protest or publicize the decision.
Posted by Dagonee (Member # 5818) on :
Tom, I posted that scenario as the fallback. As of now, the Justice dept. is saying that orders to produce can be challenged before then, and no credible evidence exists otherwise. In other words, the worst case scenario is a contempt hearing at which the servee faces no risk of jail time should he lose, as long as a contingency is made for production.
And it's not hard to justify not allowing such entities to release such information to the public. Suppose I'm a member of a terrorist cell and I learn that the passenger manifests for the flight I want to hijack have been requested by the DoD? Bad news, right?
Sure, it's an easy case - I framed it that way on purpose. But the point is that if you allow for the need of secrecy ever, something like the FISA court is necessary.
Dagonee
Posted by TomDavidson (Member # 124) on :
"As of now, the Justice dept. is saying that orders to produce can be challenged before then, and no credible evidence exists otherwise."
But HOW would you challenge them? I believe that's what the ACLU is asking. Especially since it's highly unlikely that the lawyers themselves would be made privy to any of the REASONS the information is being requested, thus making it almost impossible for them to contest validity.
In order for this process to work, you have to trust that the Justice Department is not corrupt. With Ashcroft at its helm, I do not have that trust, and there is no system in place to assure that this is NOT the case.
Posted by Dagonee (Member # 5818) on :
Any evidence of Ashcroft's corruption?
You realize you are saying that there will be no secret production, right? Which means you are comfortable with investigations not being able to proceed along the airplane passenger manifest lines above.
Because there's either a way to keep information secret or there's not.
Dagonee
Posted by TomDavidson (Member # 124) on :
You remember, of course, that I believe in complete transparency in government.
That said, I'd love to subpoena Ashcroft to get "evidence" of his corruption. Sadly, the Bush administration has made it pretty much impossible to do. So, for now, I'll just settle for calling him palpably evil. *grin*
I have no faith whatsoever in his intentions or his goodwill, and am deeply suspicious of any and all actions taken by the federal government while this current pack of jackals are in power. Consequently, pushing through laws that FORCE us to take their goodwill on faith -- since we have no other legal recourse -- rubs me the wrong way.
Posted by Dagonee (Member # 5818) on :
So if they pull your records to investigate you for terrorism, would you want them to issue a press release to that effect? Or even to have that information available to an intrepid reporter?
Dagonee
Posted by TomDavidson (Member # 124) on :
Absolutely, yes. To the latter, at least. (The former seems like overkill.)
[ August 31, 2004, 01:26 PM: Message edited by: TomDavidson ]
Posted by Dagonee (Member # 5818) on :
Wow. Talk to Richard Jewel about that sometime.
Dagonee
Posted by TomDavidson (Member # 124) on :
The great thing about Richard Jewell is that he got off.
And the bad thing about a random unknown person being arrested under the Patriot Act is that we wouldn't even know if he was arrested or not.
I would much rather risk embarassing the innocent than risk imprisoning them.
Posted by Dagonee (Member # 5818) on :
quote:And the bad thing about a random unknown person being arrested under the Patriot Act is that we wouldn't even know if he was arrested or not.
Where does it say arrests can be made in secret?
Dagonee
Posted by TomDavidson (Member # 124) on :
1) The government can request information to build a case against someone in complete secrecy.
2) If that someone is suspected of being a terrorist, the arrest is handled by a military tribunal and is placed under a gag order. Whether this can be done to civilians or not is still being determined, as well as what kind of evidence can be made available to counsel.
Combined, these seem to make it reasonably easy to "disappear" someone.
Posted by Dagonee (Member # 5818) on :
1 is absolutely unneccessary to 2.
2 is a serious problem, even though your expression of it isn't quite accurate. But 2 is not authorized by the Patriot act.
Dagonee
Posted by TomDavidson (Member # 124) on :
1 is only necessary to 2 if 2 is not a complete and total sham. And since I'm still unwilling to assume that EVERYONE in the Justice Department is evil (*grin*), I think 1 remains a useful tool in that regard.
Posted by fugu13 (Member # 2859) on :
I think the when its contested bit was a considerable sidettrack to the actual issue. The Justice Department has said its possible to contest it before the FISA court. The FISA court rules prevent anyone who's not an agent or attorney of the government from appearing, so I fail to see how the ideas are not mutually contradictory.
Posted by Dagonee (Member # 5818) on :
Because none of these have been issued, so they probably haven't drafted those rules.
Dagonee
Posted by fugu13 (Member # 2859) on :
If the justice department insists its possible to contest it, it would seem their responsibility to at least give hints as to how to contest it. This is, after all, a justice system that aims at protecting the rights of the accused, and if the accused (or others who wish to protect the association they've had with the accused, such as libraries) is given no clear avenue to contest that would seem to be an obstruction of those rights (even if not an impassable one).
Posted by Bob_Scopatz (Member # 1227) on :
1) Secret evidence is used to procure a warrant or subpoena.
2) The judge making the ruling to grant a warrant or subpoena hears the motion to quash after the fact.
3) The person who is the subject of the warrant or subpoena is not allowed to see the evidence, and presumably can't even choose his/her own lawyer. And, it appears, may not even be allowed to appear in person in front the court. Probably can't call witnesses either -- or they'd have to be individually vetted by the Atty General -- the person who presumably sought the subpoena -- or one of his direct reports ultimately, since the A.G. is the appointed head of the Justice Department.
4) The judges are not appointed by the A.G. They are appointed by the President. Who also appointed the A.G.
5) The judges sit inside the Justice Department. Presumably to protect the evidence that they see -- it never has to leave the building, I guess.
This reeks. I don't care when it was cooked up. I don't care if the furor over it it is happening now and wasn't really a big issue in 1978. I don't care that the ACLU might have a political motive for making a bigger issue of it now than they have over the past 4 years.
I want this court abolished and I want anyone convicted using evidence that was treated the way this court is set up to treat evidence released immediately with a written apology from our government.
Even if they ARE terrorists. This is not America.
This is someplace else.
And the people who think this is a good system are bigger traitors than anyone I've ever heard of.
Because they are setting up a system that goes against EVERYTHING this country was founded on.
And near as I can tell, Ashcroft is just plain nuts. Anybody who is seriously bothered by naked statues is a nut job, plain and simple. The man lacks perspective and should not EVER be given a position of authority. Let alone have a position where he can in any way control a process that involves "justice."
Yuck!
Posted by Dagonee (Member # 5818) on :
OK, one of you propose a system to protect the integrity of secret investigations. Or admit, as Tom has, that secret investiagtions are right out.
Dagonee
Posted by fugu13 (Member # 2859) on :
? As I thought my first post in this thread suggested a bit, I don't necessarily have an issue with a secrets court. My problem is with certain aspects of the PATRIOT act and more particularly with the justice department's assertions about the PATRIOT act that are not clearly true and seem intended solely to assuage concerns without providing any solid assurances (for instance in this case, I can't imagine it would be terribly hard to write up a quick "suggested approach" and some rules to allow it that would not violate the integrity of the secrets court in contestations of the PATRIOT act provision being discussed, with a note that they were subject to revision at will when practical experience was at hand).
[ August 31, 2004, 07:56 PM: Message edited by: fugu13 ]
Posted by Bob_Scopatz (Member # 1227) on :
Secret investigations -- that's a different thing altogether and you know it. You can investigate within the bounds of the current justice system and not have things leak out.
And if things leak, you punish the leakers.
But you don't set up a shadow justice system.
Sorry.
It might feel more efficient.
But it is wrong and we should not do it.
Posted by Dagonee (Member # 5818) on :
A secret investigation REQUIRES secret warrants, subpoenas, and evidence to justify them.
Otherwise it's not secret.
Dagonee
Posted by The Rabbit (Member # 671) on :
Amen Bob.
Our society decided long ago that an open justice system that respected the rights of the suspected and the accused was essential to an open free society. We have known for 200 years that we paid a price for that openness. Law inforcement agencies have always protested against recognizing the rights of suspects and requirements for openness because they have always made it harder to enforce the law. Terrorism is not new in this regard.
But the cost to society of having a closed secret justice system is simply to great. The potential for abuse is collosal. Unless all the processes of our goverment are kept open to the people, there is no way that we the people can hold the government responsible. When the govenment is no longer responsible to the people, democracy is dead. Terrorism is a serious threat, but it is not a serious as the threats oppressive governments have posed to their own people.
[ August 31, 2004, 09:52 PM: Message edited by: The Rabbit ]
Posted by Dagonee (Member # 5818) on :
I actually want to know how secret investigations are possible without secret evidence to support subpoenaes and warrants.
Dagonee
Posted by TomDavidson (Member # 124) on :
I actually want to know why secret investigations are necessary.
Posted by The Rabbit (Member # 671) on :
I just want to know how we can expect to have an open democratic society if the government has secret investigations in secret courts with secret evidence, subpoenas and warrants.
Posted by Dagonee (Member # 5818) on :
Tom, you're smarter than that. There are lots of criminals that can't be caught if they know how the police are investigating them.
And both Bob and Fugu have acknowledged the necessity for secret investigations; we're into how they should be conducted. And my question still stands - how can you have a secret investigation if you can't have secret warrants, subpoenaes, and evidence to support them.
Dagonee
Posted by Dagonee (Member # 5818) on :
quote:I just want to know how we can expect to have an open democratic society if the government has secret investigations in secret courts with secret evidence, subpoenas and warrants.
The evidence to support the warrant is secret - not the evidence used to convict. There's a significant difference.
Dagonee
Posted by Bob_Scopatz (Member # 1227) on :
Secret investigations of the following types seem perfectly fine to me:
1) Clandestine observation 2) Undercover work 3) Wiretaps with standard judicial approval (i.e., not managed by a court where the evidence can't be shown to the accused or the accused attorney). 4) Covert recordings of individuals
All of these things are perfectly acceptable because the evidence, eventually, comes out in court and it is subject to scrutiny, expert testimony, rebuttal, and some standards are applied -- i.e., rules of evidence.
People accused based on such evidence still have the right to a jury trial, calling witnesses, rebutting the government's witnesses, etc.
Not so here.
And what this court means when it says "secret evidence" is evidence that the Government calls secret. So, the government says "no-one can see this, but it proves this guy over here is a bad guy."
The judge looks at it, and with NO STANDARDS TO UPHOLD, decides the case.
The accused has no means of appeal because the evidence cannot be subpoenaed. The judge who decided to give the warrant in the first place is the same judge who decides whether the motion to quash the evidence thus gained has merit. Like they're going to say "you know, we allowed that warrant, but we shouldn't have." Sure.
Dag, you are missing the point, I think. Keeping evidence secret until the person is charged and brought to trial is SOP and truly necessary. You don't go around telling people "I'm investigating you, act naturally."
But once the person is arrested, they have a right to know what the charges are, and to examine the evidence against them.
Except in this court.
In this court, the evidence STAYS secret. And if the accused TALKS about it, they can be put in jail for talking about that there even IS secret evidence.
By what stretch of the imagination is this possibly "right" in our Constitution or in our principles?
How can you NOT see this?
Posted by Dagonee (Member # 5818) on :
Bob,
This court does not try defendants.
Say it with me loud and clear.
THIS COURT DOES NOT TRY DEFENDANTS.
Everything the court does happens as part of the INVESTIGATION, not the trial.
Sheeeesh.
Dagonee
Posted by Bob_Scopatz (Member # 1227) on :
quote:he evidence to support the warrant is secret - not the evidence used to convict. There's a significant difference.
Um, Dag, I'm afraid you haven't really been following this if you believe this statement to be true.
If the evidence is secret for the warrant, and the evidence they gather as a result of the warrant is classified as "secret" then it's all secret.
And you can't challenge the warrant and you can't challenge the evidence.
This is being done by your government today, not just here, but in military tribunals and in cases involving US citizens.
You may not believe it.
But someday the truth of all this will come out. And it'll be yet another shameful episode in our history. Where we let fear convince us that our principles could be suspended for awhile.
And frankly, even the bit about having the warrant be done in secret means that the defendant can't challenge the case on the basis of due process violations related to the warrant.
That in and of itself is a violation of our judicial practices and the rights of the accused.
It makes me ill.
Posted by Dagonee (Member # 5818) on :
Bob, show me one case where someone is convicted of a crime based on the introduction of secret evidence that the defendant can't challenge. One case.
Dagonee
Posted by Bob_Scopatz (Member # 1227) on :
quote:Bob,
This court does not try defendants.
Say it with me loud and clear.
THIS COURT DOES NOT TRY DEFENDANTS.
Everything the court does happens as part of the INVESTIGATION, not the trial.
Sheeeesh.
And Dag, you say it with me:
EVERYTHING THIS COURT DOES CANNOT BE CHALLENGED ANYWHERE BUT IN THIS COURT...
No right of appeal. No independent review. No oversight.
If I were on trial for my life and was told that I couldn't question the basis for the warrant that was used to gather evidence against me, I'd think I'd been moved to Communist Russia during Stalin's reign of terror.
Posted by Dagonee (Member # 5818) on :
You can't challenge a warrant executed against another person, ever. You don't have standing.
There is a right of appeal from this court.
And so far no one has shown anything that once the fruits of a warrant obtained from this court are sought to be introduced, the underlying affadavit doesn't come in. I know for a fact the government has excluded evidence, and even dropped charges, so as not to expose sensitive agents.
Any evidence used to convict has to be testified to or entered at trial and the defendant given a chance to confront it, or it can't be considered.
Dagonee
Posted by Bob_Scopatz (Member # 1227) on :
quote:Bob, show me one case where someone is convicted of a crime based on the introduction of secret evidence that the defendant can't challenge. One case.
1. It's secret...get it?
2. Anyone convicted based on evidence gathered as a result of a warrant arising from THIS COURT has been railroaded enough to make the point already.
The process of justice broke down at the beginning with an ILLEGAL warrant. So, if the warrant is bad, then any evidence gathered under that warrant is tainted.
You say this warrant would be legal because this court was established by laws. But it is illegal in the greater sense of being plain immoral and wrong.
So, you can have both answers to satisfy you.
Or not.
I can tell you about people who are in jail without trial in this country. Indefinitely. Well, okay, they may not be incarcerated on US soil, but we are holding them.
Secret evidence, but not in a trial. Not related to this court. Not related to the Patriot act. Evidence that may not have been gathered with secret warrants.
Complain about this all you want. But know that it's not what you've been complaining about for 2 pages.
Dagonee
Posted by Bob_Scopatz (Member # 1227) on :
Note also...
That case happened under the Clinton Admin.
And you see the ACLU was there fighting that and the dozen or so others of a similar nature -- people jailed indefinitely without being able to see the evidence against them or confront their accusers.
I believe that if this happened 12 times under Clinton et al, it has probably happened 12 x 12 times under Bush et al.
And we aren't hearing about it.
Oh, but it's okay, those people are immigrants and don't have legal status.
WRONG!
They are human beings and this is America.
Posted by Dagonee (Member # 5818) on :
Bob, if you want to rant about this, go for it. I'm not defending everything the government ever does.
I'm defending a particular use of a particular court as stated in two particular statutes.
Dagonee
Posted by Bob_Scopatz (Member # 1227) on :
Dagonee...
It's all the same thing from my perspective.
It's the government using secret evidence to put people away while skirting our own laws and judicial traditions.
I guess you miss my fundamental problem with this. It isn't that this is happening in this court and nowhere else.
It is that it is happening ANYWHERE at ANYTIME within anything that purports to be a portion of the US Justice system.
If abuses are happening in one place, it destroys the entire thing... for me.
And I think the use of secret evidence in this court inside the Justice Department is bad. Immoral. Corrupt. And easily abused.
I believe the INS "process" is corrupt, immoral, bad, wrong, etc.
I believe if we fail to live up to our ideals when we are afraid or when we are challenged, then we have no ideals.
I believe our civilized country is a sham if we allow this to happen at any time under any circumstances.
So, whether it's a court established in 1978 and expanded under a provision of the Patriot Act or it's a "process" established in some government bureaucracy, I disagree with it.
And I want it to stop.
All of it.
It's all of a piece, Dag.
It's all the same thing. Government abusing people's rights in order to assuage the fear of the majority.
If we allow it, then we are just as guilty as our overzealous government.
And I don't want that on my conscience.
Posted by Dagonee (Member # 5818) on :
Fine. Then we either don't investigate certain terrorists, we pull agents out of the field, or we do things that can result in those agents' deaths.
My point is that it is possible to maintain secrecy without having all the negative effects you fear. you seem to think it's all or nothing.
Dagonee
Posted by Bob_Scopatz (Member # 1227) on :
I prefer a government that errs on the side of upholding the principles we claim to aspire to.
There is no defense for this court inside the Justice Department if we are trying to live up to our principles.
(oh, and by the way, there is no route of appeal related to that court inside the Justice Department).
You can NEVER appeal based on the validity of the warrant.
Because you can only go into that court if you are approved by the Atty General.
And that court's evidence can't be brought to another court for review.
So, sorry Bud...at least THAT part of your right to confront the witnesses/evidence against you is out the window.
Posted by Bob_Scopatz (Member # 1227) on :
quote:Fine. Then we either don't investigate certain terrorists, we pull agents out of the field, or we do things that can result in those agents' deaths.
My point is that it is possible to maintain secrecy without having all the negative effects you fear. you seem to think it's all or nothing.
You're the one who is saying it's all or nothing -- look at your first sentence above and then come back and accuse me of hyperbole.
Surely it must be possible to get a warrant the regular way?
Regular courts have ways of safeguarding the identity of undercover agents, don't they?
Sheesh!
Why this secret court?
Why the evidence that NOBODY in an adversarial relationship to the government's case is allowed to look at?
Our regular judicial process isn't good enough?
Nonsense!
Posted by Dagonee (Member # 5818) on :
There is a FISA appeals court, Bob.
Posted by Dagonee (Member # 5818) on :
Bob, there are situations where it's OK to have an affadavit signed by an undercover cop protected with normal secrecy rules.
Then there are situations where the mere fact the government is suspicious of someone could result in someone else's death. Greater safeguards than normal are needed in these cases.
Dagonee
Posted by Shan (Member # 4550) on :
It would be nice to think we could learn from history and not need to repeat mistakes over and over again.
quote:However, as English law developed, the presumption of the open criminal trial did have at least one historical exception. For instance, in fourteenth-century England's Star Chamber, a strong presumption in favor of closed proceedings existed, and public access to any type of legal proceedings was not unusual. 53 The Star Chamber arose as a means of providing remedies for offenses beyond the scope of the common-law system. 54 The Star Chamber was an extension of the government; 55 it was not unusual, therefore, for the sovereign to attend, and his prerogative on administering justice regularly prevailed. 56
Originally associated with acts of treason, 57 the Star Chamber later became the predominant forum for criminal jurisdiction, particularly for those criminal issues that either could not be tried at common law or involved punishment unsuitable for common jury. 58 Vast abuses of authority eventually resulted in the Star Chamber's abolition in 1641. 59
And if this court convicted people, this might be an issue.
Posted by Bob_Scopatz (Member # 1227) on :
quote:There is a FISA appeals court, Bob.
Dag, the way I read it, the appeal is heard by the court that issued the warrant. And the Attorney General decides whether the person and the lawyer can attend.
If there's an appeal BEYOND that, how do they handle the review of evidence used to grant the warrant? Same way as in the FISA court? Or do they now open up all the evidence to the accused and the attorney -- i.e., unseal the classified documents?
Somehow, I doubt it is the latter.
Posted by Dagonee (Member # 5818) on :
There's an appellate level of the FISA court. I'm not sure how appeals are handled.
I'm done with this.
Posted by Bob_Scopatz (Member # 1227) on :
Yeah, me too.
I'm joining the ACLU. Let them fight it out!
Dag, by the way, I really do appreciate you sharing your legal knowledge with us here. I'm not trying to be a crank. This issue has me ranting, I agree. But I think its importance goes beyond what is legal to what is right. And I think this thing crosses the line.
I do not EVER mean to impugn your knowledge or expertise, though. You clearly know whereof you speak and if I remain unconvinced it isn't because of some flaw in your logic. It's because I'm obstinate and don't follow the rules of debate when I see my government doing things that I don't like.
Oh well. I didn't mean to get snotty and I didn't mean to frustrate you -- if I did. I sense you can more than hold your own in an argument.
I have decided that John Ashcroft is a poisonous toad, though, and anything he touches, including this court, is for me forever tainted with his malevolent stench.
And that also includes the current administration. Any President that would leave that man in office does not deserve to remain in office himself.
[/rant]
Posted by Dagonee (Member # 5818) on :
I appreciate the discussion. And I'm sure you weren't any snottier than I was (what a gross metaphor).
Eventually, though, even us cranks have to call it quits if we want to stay civil.
Dagonee
Posted by Bob_Scopatz (Member # 1227) on :
'snot your fault.
Posted by TomDavidson (Member # 124) on :
"There are lots of criminals that can't be caught if they know how the police are investigating them."
And you know what? We have always said, as a matter of American propaganda, that it is better to let the guilty go free than convict the innocent. Do we not believe this truism when it comes to, say, gangsters and terrorists?
Posted by Dagonee (Member # 5818) on :
quote:And you know what? We have always said, as a matter of American propaganda, that it is better to let the guilty go free than convict the innocent. Do we not believe this truism when it comes to, say, gangsters and terrorists?
Hmmm. Interesting point Tom. You seem to be saying gangsters and terrorists are innocent.
Dagonee
Posted by TomDavidson (Member # 124) on :
Until we convict them, they ARE innocent. Remember?
(Note: that bit of pith aside, it's worth noting that I was actually saying that it seems odd that we're willing to ignore the whole "better to let the guilty go free" concept when the guilty we're letting free are terrorists or members of organized crime. The reason this doesn't make much sense to me is that while the criminals themselves might be committing more serious crimes, the INNOCENT in these cases are no less innocent -- and it's their rights that we're worried about, right?)
[ September 01, 2004, 09:14 AM: Message edited by: TomDavidson ]
Posted by Dagonee (Member # 5818) on :
Please, Tom. That's disingenuous and you're smart enough to know it. You know the way you used "innocent" in the post above is different from the way it's meant in "innocent until proven guilty."
Otherwise, we coudln't convict anyone because no one is guilty until after they're convicted, so every guilty verdict would be convicting an innocent person.
Dagonee Edit: You added this:
quote:we're willing to ignore the whole "better to let the guilty go free" concept when the guilty we're letting free are terrorists or members of organized crime.
This reasoning is no better. This isn't a question of innocent being found guilty, it's a question of search and seizure protections.
[ September 01, 2004, 09:21 AM: Message edited by: Dagonee ]
Posted by TomDavidson (Member # 124) on :
Dag, my point is this:
You are willing to risk the rights and security of people who are neither terrorists nor gangsters to make it easier to arrest terrorists and gangsters. This is not a trade I am willing to make, mainly because I trust the government less than you do and am absolutely CERTAIN it will be abused.
RICO is used against pro-life protesters. Need I say more?
Posted by Dagonee (Member # 5818) on :
Tom, we disagree on both the risks to the innocent and dangers of not acting. It's impossible to reconcile.
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