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:Big Brother is my friend.

[YourBigBrother]

Thanks. I love you too.

Re:Big Brother is my friend.

[vague_ascetic]

A rather vehement strain of the meme:

"But BillJeff did it first"

which again provides anecdotal evidence that two wrongs do indeed make a righty.

Another lesson that has been finally ground into America's consciousness by the last seven years of governmental overreach is one that has been preached to us for over twenty since, since the Reagancomedy:

Republicans do it better the Democrats

This has now been demonstrably proven to be true in the instances of

• putrescent pure pro partisan politiking
• boot-stomping Natural Liberty
• using sodomy as an interrogatory methodology
• peeping in the public pottys
• defaming the rectitude of honourable humans who possessed the temerity to rise in dissent
• promulgation of revisionist ideations to the extent of the exectuive power, which seems to acquire an ability to exist without the strictures of the U.S Constitution whenever a Republican has ascended to the Presidency
• deficit spending; as it is well known that Democrats Tax and spend; yet that is a far far better practise than to just spend without end, while heavily dampening down the flow of funding coming into the government.
• elevating a personal version (Per.Version) of the Creative Force to a position of dominance over the civil government

These are but a few of the many examples of what happens with Conservatism Gone Wild. Yet you seem to be admitting an instance where the Republicans are no better than the Democrats here, and that is when it comes to defending liberty.

So what is the purpose of you ravening spew? Are you claiming that The Democrats Are The Lamer of Two Evils? Given my near seven year experience with the tyranny of GW Bush, I've grown nostalgic for a lamer of evils.

i'm all "tapped" out

[deftones_325]

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 be listened to? Because it is.

Re:Never Been Comfortable

[corsec67]

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"?

Option F

[Harmonious Botch]

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.

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

[corsec67]

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?

Re:Never Been Comfortable

[saihung]

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 secret is more important that the aggrieved plaintiff's need for justice. If there are secrets that must be introduced at trial, the judge and the attorneys are trusted to hear them in closed court. Especially considering the potential for abuse, especially the tendency of the Bush administration to use the privilege to cover up criminal activity that should result in jail terms for high officials, the common law doctrine of state secrets privilege created in U.S. v. Reynolds needs to change. A statute regulating the use of classified information at trials would be nice.

Two simple thoughts...

[tiqui]

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 providing an complete an accurate record of your online activities and the files on your system? (in other words: should the threat of "recollection" evidence be a tool that can be used to force you to give-up evidence you would not otherwise have to produce?)

I do not like the idea of government using secret evidence, but I also do not want any court making it worse by allowing in "recollections" of documents. You do not fix the problem of secret evidence which cannot be examined by allowing recollected evidence which cannot be examined. Why not just skip a few steps and start using fortune tellers and ouija boards for evidence?

Re:It's not bad news

[tinkerghost]

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 copy at any time they want. If the Al-Haramain lawyers wanted to play games like that they would simply release the document to the public through channels outside the control of the US govt.

I am certain that as in the 1953 case, this round of 'state secrets' is going to eventually be revealed as a ploy to avoid public humiliation and not a matter of national security at all.