Mixed News on Wiretapping from 9th Circuit US Court

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."

Re:HALF-way

[Kjella]

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?

Originalize This:

[vague_ascetic]

"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

Re:Intentional Legislation Trumps Common Law.

[Vengie]

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)

"State Secrets" was formed as a dodge...

[Sparky McGruff]

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.

It's not bad news

[Kenrod]

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]