11 ms·

Federal Prosecutors, in a Policy Shift, Cite Warrantless Wiretaps as Evidence

293 points by panarky 13y ago

coldcode 13y ago
Either the US is a nation of laws or a banana republic. You can't have your illegal surveillance and eat a banana too.
- codex 13y ago
  This surveillance was authorized by the FISA Amendments Act of 2008, per the article.
  - deleted 13y ago
    [deleted]
  - deleted 13y ago
    [deleted]
  - unsupak 13y ago
    Isn't this amendment unconstitutional? including the secret evidence act?
    - coldcode 13y ago
      If someone can get standing then the Supremes can vote on it. Until then it's status quo.
    - mpyne 13y ago
      Foreigner citizens have no (literally none) Fourth Amendment protection while outside the U.S. AFAIK there's no other specific provision in the Constitution (even as amended) speaking to communications privacy. Even assuming the Fourth Amendment does apply, the "third-party doctrine" that has been applied to the Fourth Amendment since the 19th century would open up a hole for foreign surveillance large enough to drive a truck through, when applied to telecommunications. This hole was closed by Congress for telephones, pagers, cell phones and some other things, but not for email or other Internet traffic. Even if Congress did pass a law restricting interception of Internet traffic, Congress could make exceptions to their own law... such as FISA and the FISA Amendments Act. Also, many other laws restricting the ability of government to wiretap have specific exceptions for the purpose of foreign surveillance. It might be arguable that FISA Amendments Act goes too far in the leeway it gives regarding how to decide whether a targeted individual is a U.S. person or not, but that wouldn't substantially affect the law as implemented (and wouldn't make any of the non-Americans feel better either way).
codex 13y ago
This is a good out for Obama. He can't cancel the program or he may appear soft on terror, hurting Democratic presidential chances. Furthermore, the underlying surveillance law was passed by Congress (FISA Amendments Act of 2008), and he has a duty to uphold it. However, he doesn't want to continue these programs unless they are constitutional. Letting the Supreme Court review the program either shuts it down or gives it a stamp of legality. Now that derived evidence has been introduced into a criminal court, someone finally has standing to sue. This may be a part of a gradual wind down of the war on terror.
- hrasyid 13y ago
  Turns out he's a good guy after all, huh?
  - SCAQTony 13y ago
    This is not an "out" but rather it is an "in." This terrible fourth amendment violation will be rubber stamped by the judiciary and this practice will filter it's way down to the local level. Then the last step of this terrible spiral will be unscrupulous intelligence officials planting digital evidence to make a case or do "what is right for the country."
- tedivm 13y ago
  Blaming congress for this is an easy out, but doesn't stand up to real scrutiny. Lets not forget that the executive branch has a secret interpretation of the law, one that many in congress were unaware of, that allowed them to go well above and beyond anything actually authorized by congress.
  - tptacek 13y ago
    They do? What would that be? What have you learned about it that you can tell us about?
    - D9u 13y ago
      I believe the weasel-words are "intercept," and "collect."
Karunamon 13y ago
I wonder what was the genesis of this policy change? From a legal standpoint, they were untouchable with the whole "parallel construction" thing. This has the potential to get the whole program killed. Did someone in charge with both the clout and the morality to do the right thing take a risk? Some other reason? This fascinates me.
- interurban 13y ago
  Perhaps it was when the Solicitor General lied to the Supreme Court? As he/his office has to appear there often it behooves him to maintain a good relationship with the court.
- bhickey 13y ago
  > From a legal standpoint, they were untouchable with the whole "parallel construction" thing. Where's the test case for parallel construction? Without some case law, I could easily imagine a federal court taking a dim view of this legal theory.
  - Tuna-Fish 13y ago
    The entire point of parallel construction is that no court will ever know it was used in a case, so there is never a case in which it can be challenged, making it and the surveillance used untouchable by courts.
- tptacek 13y ago
  "Parallel construction" requires investigators to discover independent probable cause or an arrestable offense by the target; it refers to the use of surveillance information to be "at the right place at the right time", but is not a generic mechanism that transforms surveillance intelligence into admissible evidence.
- icodestuff 13y ago
  My guess is that the defendant covered his tracks well, so the DoJ couldn't come up with a parallel construction in this case, and felt, based on the wiretap, that this guy was dangerous enough to risk the whole program on. I hope the challenge is successful, and that they can eventually use legal means to nail this guy later. :\
tobylane 13y ago
The last paragraph mentions past convictions based on evidence where this sort of notice should have been given, but it wasn't policy to do so at the time. Is there a group out there known to deal with this sort of thing? Do the ALCU/AI/Supreme Court even have a chance before there's some retroactive fix? Also, based on their past decisions how would the SC rule?
Rogerh91 13y ago
Huge deal, as this will most likely set the stage for a Supreme Court ruling that will define this generation's privacy rights. The liberal justices voted as a bloc together in CLAPPER, DIRECTOR OF NATIONAL INTELLIGENCE, ET AL. v. AMNESTY INTERNATIONAL USA ET AL. to try to challenge the constitutionality of warrantless wiretaps, and I expect much the same from Kagan, Ginsburg, Breyer, and Sotomayor in this case. Of the conservative justices, Roberts, especially given his tendency to try to hit some home-run majority rulings for his legacy of being a "by-the-rules" arbitrator, and his pronouncement of privacy issues as being the paramount constitutional issue would be most likely to flip with the liberals. With that said, his previous defense and work on behalf of Bork, and his theory of a lack of privacy in the Constitution does leave a bad taste. Justice Kennedy unfortunately cannot be counted on when it comes to privacy issues. His majority opinion on Skinner v. Railway Labor Executives enumerating that the government could violate the privacy rights of railway workers by subjecting them to drug tests due to a "special needs" exemption where the Fourth Amendment could be ignored if it was deemed to be in the overriding interest of public safety is the basis of the NSA's metadata collection program---see: http://www.nationaljournal.com/nationalsecurity/how-justice-anthony-kennedy-helped-bring-you-the-surveillance-state-20130709 http://www.nationaljournal.com/nationalsecurity/how-justice-... He's still the second most likely to flip because Scalia, Alito, and Thomas are basically lost causes. Scalia basically called a general right to privacy in the Constitution rubbish, and it's unlikely either of the three will bend their ideological bent that the "national security agencies" know best. The votes might be there. It probably hinges on Roberts. But significant positive changes to how the American government deals with privacy issues could happen. Again, the votes might be there, which is better than never discussing the issue at all (or discussing them in dark, dank courtrooms nobody hears about). Cause for hope goes exponentially up if one of the conservative justices retires and is replaced by a young liberal justice attuned to technology much as Kagan is. If that happens, this likely scenario becomes a most likely scenario. Wildcard: The Supreme Court actually doesn't know anything or very much at all about technology. They still pass paper briefs among each other instead of email...a strongly written amicus brief in this situation by technology-savvy leaders could well tip the balance. http://rt.com/usa/supreme-court-kagan-email-758/ http://rt.com/usa/supreme-court-kagan-email-758/
- clarkevans 13y ago
3825 13y ago
> Mr. Muhtorov is accused of planning to travel abroad to join the militants and has pleaded not guilty. I don't want to distract anyone from the conversation but I don't understand the case. The prosecutors are just accusing him of planning to join militants? No actual firm conspiracy/plans to actually cause any physical harm? No actual target to attack? What crimes are the prosecutors trying to prove here?
- phaer 13y ago
  I don't know about the US law, but in at least some european countries (like austria, where I grew up) "getting guidance with the purpose to commit terrorist attacks" is actually crime. As well as "approval of terrorist attacks" (which are quite liberal defined). In my expectation, the US should not be too far "behind" on prosecuting those thought crimes.
  - mpyne 13y ago
    "Thought crime" like conspiring to commit murder is also a crime, as it turns out. But then it's not really a strict thoughtcrime in the 1984 sense either, since it does still involve overt acts. E.g. simply saying that 'terrorists are cool' wouldn't get you charged, but starting a specific plot to conduct an attack and taking actions to advance that plot could, even if those "actions" are simple matters of coordination and communications... again, just like for ordinary homicide.
    - phaer 13y ago
      "E.g. simply saying that 'terrorists are cool' wouldn't get you charge" ...in austria? Yes, if you do it in front of 30 or more people (definition of "in public") it would get you charged. Well, of course not in the form of an obvious joke like "terrorists are cool" but if the prosecutor sees it as an "approval" of terrorist attacks.
avty 13y ago
The end of freedom
pmorici 13y ago
Seems like the other big story here might be that the Solicitor General probably knowingly committed perjury in front of the Supreme Court. It says in the article that he "discovered" this past June that defendants weren't notified and two paragraphs down it talks about how he stated in arguments in front of the Supreme Court a year earlier that defendants facing such evidence would be notified.
crb3 13y ago
Sounds like the Stasi are sure they've bought themselves a judge.

293 points by panarky 13y ago

coldcode 13y ago

Either the US is a nation of laws or a banana republic. You can't have your illegal surveillance and eat a banana too.

codex 13y ago
This surveillance was authorized by the FISA Amendments Act of 2008, per the article.
- deleted 13y ago
  [deleted]
- deleted 13y ago
  [deleted]
- unsupak 13y ago
  Isn't this amendment unconstitutional? including the secret evidence act?
  - coldcode 13y ago
    If someone can get standing then the Supremes can vote on it. Until then it's status quo.
  - mpyne 13y ago
    Foreigner citizens have no (literally none) Fourth Amendment protection while outside the U.S. AFAIK there's no other specific provision in the Constitution (even as amended) speaking to communications privacy. Even assuming the Fourth Amendment does apply, the "third-party doctrine" that has been applied to the Fourth Amendment since the 19th century would open up a hole for foreign surveillance large enough to drive a truck through, when applied to telecommunications. This hole was closed by Congress for telephones, pagers, cell phones and some other things, but not for email or other Internet traffic. Even if Congress did pass a law restricting interception of Internet traffic, Congress could make exceptions to their own law... such as FISA and the FISA Amendments Act. Also, many other laws restricting the ability of government to wiretap have specific exceptions for the purpose of foreign surveillance. It might be arguable that FISA Amendments Act goes too far in the leeway it gives regarding how to decide whether a targeted individual is a U.S. person or not, but that wouldn't substantially affect the law as implemented (and wouldn't make any of the non-Americans feel better either way).

codex 13y ago

This is a good out for Obama. He can't cancel the program or he may appear soft on terror, hurting Democratic presidential chances. Furthermore, the underlying surveillance law was passed by Congress (FISA Amendments Act of 2008), and he has a duty to uphold it. However, he doesn't want to continue these programs unless they are constitutional. Letting the Supreme Court review the program either shuts it down or gives it a stamp of legality. Now that derived evidence has been introduced into a criminal court, someone finally has standing to sue. This may be a part of a gradual wind down of the war on terror.

hrasyid 13y ago
Turns out he's a good guy after all, huh?
- SCAQTony 13y ago
  This is not an "out" but rather it is an "in." This terrible fourth amendment violation will be rubber stamped by the judiciary and this practice will filter it's way down to the local level. Then the last step of this terrible spiral will be unscrupulous intelligence officials planting digital evidence to make a case or do "what is right for the country."
tedivm 13y ago
Blaming congress for this is an easy out, but doesn't stand up to real scrutiny. Lets not forget that the executive branch has a secret interpretation of the law, one that many in congress were unaware of, that allowed them to go well above and beyond anything actually authorized by congress.
- tptacek 13y ago
  They do? What would that be? What have you learned about it that you can tell us about?
  - D9u 13y ago
    I believe the weasel-words are "intercept," and "collect."

Karunamon 13y ago

I wonder what was the genesis of this policy change? From a legal standpoint, they were untouchable with the whole "parallel construction" thing. This has the potential to get the whole program killed. Did someone in charge with both the clout and the morality to do the right thing take a risk? Some other reason? This fascinates me.

interurban 13y ago
Perhaps it was when the Solicitor General lied to the Supreme Court? As he/his office has to appear there often it behooves him to maintain a good relationship with the court.
bhickey 13y ago
> From a legal standpoint, they were untouchable with the whole "parallel construction" thing. Where's the test case for parallel construction? Without some case law, I could easily imagine a federal court taking a dim view of this legal theory.
- Tuna-Fish 13y ago
  The entire point of parallel construction is that no court will ever know it was used in a case, so there is never a case in which it can be challenged, making it and the surveillance used untouchable by courts.
tptacek 13y ago
"Parallel construction" requires investigators to discover independent probable cause or an arrestable offense by the target; it refers to the use of surveillance information to be "at the right place at the right time", but is not a generic mechanism that transforms surveillance intelligence into admissible evidence.
icodestuff 13y ago
My guess is that the defendant covered his tracks well, so the DoJ couldn't come up with a parallel construction in this case, and felt, based on the wiretap, that this guy was dangerous enough to risk the whole program on. I hope the challenge is successful, and that they can eventually use legal means to nail this guy later. :\

tobylane 13y ago

The last paragraph mentions past convictions based on evidence where this sort of notice should have been given, but it wasn't policy to do so at the time. Is there a group out there known to deal with this sort of thing? Do the ALCU/AI/Supreme Court even have a chance before there's some retroactive fix? Also, based on their past decisions how would the SC rule?

Rogerh91 13y ago

Huge deal, as this will most likely set the stage for a Supreme Court ruling that will define this generation's privacy rights. The liberal justices voted as a bloc together in CLAPPER, DIRECTOR OF NATIONAL INTELLIGENCE, ET AL. v. AMNESTY INTERNATIONAL USA ET AL. to try to challenge the constitutionality of warrantless wiretaps, and I expect much the same from Kagan, Ginsburg, Breyer, and Sotomayor in this case. Of the conservative justices, Roberts, especially given his tendency to try to hit some home-run majority rulings for his legacy of being a "by-the-rules" arbitrator, and his pronouncement of privacy issues as being the paramount constitutional issue would be most likely to flip with the liberals. With that said, his previous defense and work on behalf of Bork, and his theory of a lack of privacy in the Constitution does leave a bad taste. Justice Kennedy unfortunately cannot be counted on when it comes to privacy issues. His majority opinion on Skinner v. Railway Labor Executives enumerating that the government could violate the privacy rights of railway workers by subjecting them to drug tests due to a "special needs" exemption where the Fourth Amendment could be ignored if it was deemed to be in the overriding interest of public safety is the basis of the NSA's metadata collection program---see: http://www.nationaljournal.com/nationalsecurity/how-justice-anthony-kennedy-helped-bring-you-the-surveillance-state-20130709 http://www.nationaljournal.com/nationalsecurity/how-justice-... He's still the second most likely to flip because Scalia, Alito, and Thomas are basically lost causes. Scalia basically called a general right to privacy in the Constitution rubbish, and it's unlikely either of the three will bend their ideological bent that the "national security agencies" know best. The votes might be there. It probably hinges on Roberts. But significant positive changes to how the American government deals with privacy issues could happen. Again, the votes might be there, which is better than never discussing the issue at all (or discussing them in dark, dank courtrooms nobody hears about). Cause for hope goes exponentially up if one of the conservative justices retires and is replaced by a young liberal justice attuned to technology much as Kagan is. If that happens, this likely scenario becomes a most likely scenario. Wildcard: The Supreme Court actually doesn't know anything or very much at all about technology. They still pass paper briefs among each other instead of email...a strongly written amicus brief in this situation by technology-savvy leaders could well tip the balance. http://rt.com/usa/supreme-court-kagan-email-758/ http://rt.com/usa/supreme-court-kagan-email-758/

clarkevans 13y ago

3825 13y ago

> Mr. Muhtorov is accused of planning to travel abroad to join the militants and has pleaded not guilty. I don't want to distract anyone from the conversation but I don't understand the case. The prosecutors are just accusing him of planning to join militants? No actual firm conspiracy/plans to actually cause any physical harm? No actual target to attack? What crimes are the prosecutors trying to prove here?

phaer 13y ago
I don't know about the US law, but in at least some european countries (like austria, where I grew up) "getting guidance with the purpose to commit terrorist attacks" is actually crime. As well as "approval of terrorist attacks" (which are quite liberal defined). In my expectation, the US should not be too far "behind" on prosecuting those thought crimes.
- mpyne 13y ago
  "Thought crime" like conspiring to commit murder is also a crime, as it turns out. But then it's not really a strict thoughtcrime in the 1984 sense either, since it does still involve overt acts. E.g. simply saying that 'terrorists are cool' wouldn't get you charged, but starting a specific plot to conduct an attack and taking actions to advance that plot could, even if those "actions" are simple matters of coordination and communications... again, just like for ordinary homicide.
  - phaer 13y ago
    "E.g. simply saying that 'terrorists are cool' wouldn't get you charge" ...in austria? Yes, if you do it in front of 30 or more people (definition of "in public") it would get you charged. Well, of course not in the form of an obvious joke like "terrorists are cool" but if the prosecutor sees it as an "approval" of terrorist attacks.

avty 13y ago

The end of freedom

pmorici 13y ago

Seems like the other big story here might be that the Solicitor General probably knowingly committed perjury in front of the Supreme Court. It says in the article that he "discovered" this past June that defendants weren't notified and two paragraphs down it talks about how he stated in arguments in front of the Supreme Court a year earlier that defendants facing such evidence would be notified.

crb3 13y ago

Sounds like the Stasi are sure they've bought themselves a judge.