5 ms·

"Secret court filings" that are hidden from the defense during a trial are ridiculously uncommon. Sealed filings for, eg, warrants are common. They are typica

"Secret court filings" that are hidden from the defense during a trial are ridiculously uncommon. Sealed filings for, eg, warrants are common. They are typically made available to the defense & the public for the trial. Otherwise the evidence amounts to "trust us, we're the government". In counter-espionage cases, it is very common for the government to balance concern about disclosing its methods with likelihood of a conviction. If they fuck up the investigation and tip off the target before the trial, or tip off other targets during the trial, it's not the court's job to give them a do-over.

tptacek 11y ago
Yes. Am I misreading this case? It seems like evidence was furnished, and that the complaint here is that the original sealed warrant wasn't. The defense objects because the original FISA warrant could have been flawed, and if it was, the evidence deployed in the trial could have been excluded.
- fiatmoney 11y ago
  "Evidence" isn't just "the parts of the evidence the prosecution wanted to use". How is the defense supposed to cross-examine the person who gathered the evidence when they can't investigate the circumstances under which it was gathered? How are they supposed to make a cogent argument that it was not a properly issued warrant unless they can see it? How are they supposed to argue that even if the the warrant was proper, the evidence gathered was not under the scope of the warrant? How are they supposed to get access to other exculpatory evidence that would have been collected under the warrant, that the prosecution declined to use?
  - tptacek 11y ago
    I understand the argument, but is that what actually happened here? My understanding is that the one thing the defense doesn't have is the whole justification for entering the defendant's personal space in the first place. I could be misreading!
    - fiatmoney 11y ago
      It sure looks like you are. "Gartenlaub wants to see the warrant in his case so he can challenge it as based on false information and therefore invalid." According to the article the warrant itself and the filings in support of it are unavailable to the defense. That is essential to making arguments on the legality of the warrant in the first place, the scope of the evidence gathered to the warrant, and factual arguments derived from the process of executing the warrant. (Example! The warrant included Device X, because Secret FBI Source Y said it had classified information. The device was searched, but contained no such information; in fact it had been completely wiped. This lets the defense argue that the FBI knew the source was unreliable, or that the evidence found was exculpatory (eg, evidence the target had been hacked to plant the child porn). None of this is available to the defense.) The government says that the evidence gathered in the warrant has been made available. They could very well be lying, or simply mistaken, and it's impossible to investigate. Regardless, it is only part of the issue. The process here is that the judge looked at it the government's arguments, without involving the defense, and said "yeah, it looks good, trust me / them". (Which, incidentally, is completely contrary to the notion of the judge as a neutral arbiter rather than an inquisitor working for the government. Not surprising when the FISA court itself essentially operates in that capacity.)
      - tptacek 11y ago
        Sorry, I think I'm just being imprecise. I understand the nature of his argument: he'd like to challenge the warrant to get the CP evidence excluded. He can't, because the warrant is secret; his CP criminal trial judge validated it, but in a normal case, he'd have the chance to evaluate himself. What I perceived you to have been claiming was that the defendant additionally doesn't know the actual provenance of the evidence. Which computer did it come from? How does he know the FBI didn't simply make it up? It's that latter claim that I'm pushing back on.
        fiatmoney 11y ago
        The warrant establishes the provenance, it's the whole point!

tptacek 11y ago

Yes. Am I misreading this case? It seems like evidence was furnished, and that the complaint here is that the original sealed warrant wasn't. The defense objects because the original FISA warrant could have been flawed, and if it was, the evidence deployed in the trial could have been excluded.

fiatmoney 11y ago
"Evidence" isn't just "the parts of the evidence the prosecution wanted to use". How is the defense supposed to cross-examine the person who gathered the evidence when they can't investigate the circumstances under which it was gathered? How are they supposed to make a cogent argument that it was not a properly issued warrant unless they can see it? How are they supposed to argue that even if the the warrant was proper, the evidence gathered was not under the scope of the warrant? How are they supposed to get access to other exculpatory evidence that would have been collected under the warrant, that the prosecution declined to use?
- tptacek 11y ago
  I understand the argument, but is that what actually happened here? My understanding is that the one thing the defense doesn't have is the whole justification for entering the defendant's personal space in the first place. I could be misreading!
  - fiatmoney 11y ago
    It sure looks like you are. "Gartenlaub wants to see the warrant in his case so he can challenge it as based on false information and therefore invalid." According to the article the warrant itself and the filings in support of it are unavailable to the defense. That is essential to making arguments on the legality of the warrant in the first place, the scope of the evidence gathered to the warrant, and factual arguments derived from the process of executing the warrant. (Example! The warrant included Device X, because Secret FBI Source Y said it had classified information. The device was searched, but contained no such information; in fact it had been completely wiped. This lets the defense argue that the FBI knew the source was unreliable, or that the evidence found was exculpatory (eg, evidence the target had been hacked to plant the child porn). None of this is available to the defense.) The government says that the evidence gathered in the warrant has been made available. They could very well be lying, or simply mistaken, and it's impossible to investigate. Regardless, it is only part of the issue. The process here is that the judge looked at it the government's arguments, without involving the defense, and said "yeah, it looks good, trust me / them". (Which, incidentally, is completely contrary to the notion of the judge as a neutral arbiter rather than an inquisitor working for the government. Not surprising when the FISA court itself essentially operates in that capacity.)
    - tptacek 11y ago
      Sorry, I think I'm just being imprecise. I understand the nature of his argument: he'd like to challenge the warrant to get the CP evidence excluded. He can't, because the warrant is secret; his CP criminal trial judge validated it, but in a normal case, he'd have the chance to evaluate himself. What I perceived you to have been claiming was that the defendant additionally doesn't know the actual provenance of the evidence. Which computer did it come from? How does he know the FBI didn't simply make it up? It's that latter claim that I'm pushing back on.
      - fiatmoney 11y ago
        The warrant establishes the provenance, it's the whole point!