How Do You Prove You Were Warrantlessly Wiretapped If It's A Secret?

from the the-amazing-legal-obstacle-course dept

Wed, Jul 9th 2008 10:44am — Mike Masnick

As we continue to debate the question of telco immunity, there's a separate, but related legal issue that's worth paying attention to as well: the question of who can actually sue about having their rights abused by supposedly warrantless wiretaps. Earlier this year, the Supreme Court ruled that various groups such as the ACLU couldn't sue because they had no "standing" (i.e., proof that they were impacted by the warrantless wiretaps). It's a bit convoluted when you think about it: there's no way to determine if illegal spying took place because the only way you could get the evidence would be to first prove you have the evidence that it took place. But if you think that's twisted, it gets even more bizarre.

It turns out that in one related case, the government accidentally sent over proof that it used a warrantless wiretap to monitor a certain group. Thus, that group can actually show it has standing... sorta. One of the lawyers involved in pushing just such a lawsuit forward has a stunning tale explaining the amazing obstacle course he had to traverse to actually have this lawsuit move forward (and it's not over yet). Basically, the government claims the information in the document is still secret, even though it gave it out, and some of the details have been reported on the news (in business contexts once info is out, it's no longer secret -- apparently, not so with the government).

Where things get really bizarre, though, is in how the lawyers on this case can actually deal with this evidence it has. Basically, they had to destroy all copies they had of the evidence in question, and can sort of obliquely refer to it from memory in secret filings that are written under the watchful eye of the Justice Department, officially to make sure that the "classified info" remains classified. Even better, the lawyers had to respond to a secret filing from the Justice Department that the lawyers weren't even allowed to see. The case is far from over -- as the latest ruling basically set up another ridiculous tightrope for the lawyers to walk -- basically saying that they can't use the evidence in the document because it would prove their case. Instead, they first have to prove it without the document, and then if they do that, they can use the document (after it's basically no longer necessary). And there's all sorts of side amusements, such as reading about how the Justice Department tries to destroy the lawyer's computer to make sure there's no secret documents on there (it's like a scene from a bad comedy, where they discover that simply banging a hard drive on a table isn't an effective way to damage it). And, there's also the bit where the Justice Department refuses to let one lawyer take part in the drafting of the secret filing because they just don't like him.

This has gone way beyond protecting state secrets or providing security and protection to American Citizens. As you read the details, it's quite clear this is about doing whatever possible to hide what was almost certainly an illegal move by the administration. If telecom immunity is granted, then this particular case, Al Haramain v. Bush, would basically be the only case left that looks into the legality of warrantless wiretapping. Say what you want about the importance of protecting US citizens, the American Constitution set up a system of checks and balances for a very good reason: so no single group has enough power to make the rules itself. This whole thing shows how the executive branch is trying to guarantee there are no checks or balances on some of its activities. That's a very scary precedent and on that anyone -- no matter what your political persuasion -- should be against.

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Filed Under: al haramain, immunity, state secrets, warrantless, wiretaps

35 Comments

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Anonymous Coward, 9 Jul 2008 @ 11:38am

But think of the children...! If just one was saved by secret warrantless wiretapping then it was all worth it.
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Anonymous Coward, 9 Jul 2008 @ 11:48am

Welcome to 1984. Getting worse by the day here in the US.
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ha, 9 Jul 2008 @ 11:54am

This is, of course, the same charade we're going to see pretty frequently if Guantanamo Bay detainees start receiving trials in our courts. The charges against them? Classified. Evidence supporting those charges? Also classified. Sorry, bud. Back in the cage.
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Adam, 9 Jul 2008 @ 12:01pm

Nixon, Nixon, Nixon.

That is all I can think of when I read these posts.
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Anonymous Coward, 9 Jul 2008 @ 12:03pm

Re:
Executive Branch = Inner Party
Corporations = Outer Party
The rest of us = Proles
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Anonymous Coward, 9 Jul 2008 @ 12:05pm

Move to Canada
...not really.

Our leaders are so high up Bush's ass that they can see Tony Blair's feet.

We live in interesting times.
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Rekrul, 9 Jul 2008 @ 12:09pm

All hail King Bush! The highest law in the land!
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exnav, 9 Jul 2008 @ 12:13pm

clas is clas and unclas is unclas
Having served, and served in an area with much clas mat (classified material), I can actually understand some of the logic here. When a piece of information gets classified by our uncle (sam) it stays that way until the classifying authority (the head of whatever govt agency classified it in the first place) declares it to be declassified (unclas). It doesn't matter what the info is or what medium it is on. I worked on classified hardware. Now, classified information can be compromised (released to people who are not cleared, or have no need to know), but that does NOT declassify it. That just makes it compromised classified information. It still must be treated as classified, even by regular folks like you and I. It sounds to me like the laywers need to go through the process of getting a government security clearance high enough to be permitted to see what they need to see. Certainly they have a need to know. See, with classified information you need to have both the appropriate clearance AND the need to know in order to be privy to classified info.
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DCX2, 9 Jul 2008 @ 12:14pm

On Standing
One of the major issues I have with standing is that a surveillance state has a chilling effect on free speech. After the new FISA bill is signed into law, I will be much more careful about what I say online because I know the feds will be listening. This ought to be a de facto example of harm; that anyone who feels the chilling effect of the surveillance state ought to have standing to file suit.

The one ray of hope I see is that in Chief Judge Vaughn Walker's ruling in al-Haramain v. Bush, he repeated uses the term "aggrieved persons". It is my hope that an aggrieved person is somehow a lesser burden of proof than standing.

For instance, given the evidence presented by Mark Klein in Hepting vs. ATT (that all information going over AT&T's WorldNet fibers is being copied into a room which only the NSA has access to), it should be reasonable to assume that anyone who transmits any bits over AT&T's fibers in San Francisco was illegally tapped. This should count as the necessary evidence for the lawyers for al-Haramain.
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Overcast, 9 Jul 2008 @ 12:15pm

Executive Branch = Inner Party
Corporations = Outer Party
The rest of us = Proles

Yep.
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Anonymous Poster, 9 Jul 2008 @ 12:20pm

This is so fucking sad, it's not even funny.

194 days and counting...I can't wait until this administration is out of office so we can all (figuratively) hang them. This is exactly the kind of thing our representatives should be fighting AGAINST, not FOR.

Stupid telco money buying their votes...
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Christopher Graversen, 9 Jul 2008 @ 12:54pm

Re:
dumbass... I hope your joking...
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A. Lloyd Flanagan, 9 Jul 2008 @ 1:12pm

I have to say it.
This is what we deserve for electing all those Republicans. We've got our security. The government will protect us from those awful terrorists and immigrants and malcontents. Aren't we happy now? We love Big Brother!
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CM, 9 Jul 2008 @ 1:28pm

Why the Telco's?
I am very ignorant on this matter; can someone please explain to mean the Telco's role in all this. I would have assumed that they are the medium by which the government is conducting these taps, but I seem to keep reading a more sinister role in a lot of these articles and comments, but I don't understand why.

Whats the Telco's role in all this?

Thank;
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rso, 9 Jul 2008 @ 1:37pm

what's the point?
assuming the official version of events on 9/11 are true, Bin Laden practically sent a direct email to Bush/Cheney telling them he was going to attack, complete with all the particulars. But, they had no idea someone would fly a plane into the WTC, according to Rice. So, how likely is it that they would act on any info gained from these wiretaps?

Secondly, anyone over the age of 10 in this country knows the correct response to law enforcement's request top search (or tap) is "do you have a warrant?". No one is pointing out that teleco immunity WAS available to them - had they asked for and received a warrant.
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teknosapien, 9 Jul 2008 @ 1:42pm

I know I'm gonna get flamed but
Does anyone actually remember history and the raise of the Nazi party in Germany
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Opressed Masses, 9 Jul 2008 @ 1:48pm

It's not just the current administration.
The freedoms that were established in the founding documents of this country have been getting systematically trampled, for over 70 years. I don't think Bush and/or his cronies are any better or that much worse than other administrations. If you want to look at a real abuse of power look at how the Supreme Court has been corrupted by it's own power over that same time frame. Congress is no better, with the litany of gross corruption from special interests to the out right lies they all tell to get re-elected. Everyone should know how far they have strayed from what was once an equitable system. Read the Constitution, Bill of Rights, and the Declaration of Independence and you will see that today most of what the government does is completely against those core concepts of liberty those documents guarantee us. It makes me sick that people always try to blame one person or small group for all that is wrong, while completely ignoring recent history showing how the whole system is broken. Impeach em all and then let's start over.
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Anonymous Coward, 9 Jul 2008 @ 1:48pm

Re:
Telco money buying votes? Try the other way around. They are GETTING MONEY by cooperating and towing the "terrorist" line and providing information without a warrant. That's why immunity is so important!

a href="http://www.youtube.com/watch?v=7nD7dbkkBIA">Aaron Russo was right!
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Anonymous Coward, 9 Jul 2008 @ 1:51pm

telco money buying votes
THE LINK IS HERE. CLICK HERE
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GeneralEmergency (profile), 9 Jul 2008 @ 1:54pm

Stunned after RTFA.
If you did not read the Salon piece, you need to.

After stepping back a bit and reflecting, it has become apparent to me this situation, along with the TSA treating everyone like criminals, new laws having to be crafted for Telco Immunity and a host of other Orwellian developments during the last 8 years, are all symptomatic of what happens when a free people lack the collective courage to aggressively take on and destroy an external threat, enemy or evil.

Lacking that resolve and courage to confront and destroy the evil they face, they inevitably turn on each other, taking and surrendering their freedoms, thus ending up morphing into the very image of the dictatorial evil they feared in the first place.

Wake up fellow citizens.
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Greg, 9 Jul 2008 @ 2:02pm

Just a matter of Time
Before everyone whinning and Blaming GW is Glowing from Radiation and growing tumors ..........

then they'll be whinning: Why didn't someone do something ....Whaaa Whaaaa Wha. The End !!!
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Chuck Norris' Enemy (deceased), 9 Jul 2008 @ 2:04pm

Re: I know I'm gonna get flamed but
You must be pretty old to remember that! =)
It's good to see you on the internet.
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juanita, 9 Jul 2008 @ 2:06pm

Re:
Nixon, Nixon, Nixon. That is all I can think of when I read these posts. Yeah. Me too.
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JB, 9 Jul 2008 @ 2:28pm

Secrecy
Just try to imagine the USA without government secrets...

Military: We are planning an attack on the opposition.
Opposition: Attack first, or simply move elsewhere.

NSA: We are acquiring a warrant to tap a suspected terrorist's phone line.
Suspected Terrorist: Change plans to avoid NSA's tap.

If there were no secrets, then there would be no security.
Sure the government should admit when it was wrong, but it should not be forced to reveal secrets that could protect Americans.
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Anonymous Coward, 9 Jul 2008 @ 2:30pm

Re: Just a matter of Time
Yeah, we're going to end up that way regardless of a "terrorist" attack. Didn't you see how Bush and his asshats edited the EPA reports?

He couldn't stop 9/11 despite blatant evidence it was going to happen. What was his initial reaction? The same thing he did throughout his entire life, hid like a little bitch.
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Where have the leaders gone?, 9 Jul 2008 @ 3:00pm

The outcome of these efforts are perverse
I'm going off the road a little here, but it's about the children, right? Some theories suggest that Womens Lib really about getting the women into the workforce so the government could collect taxes. As a result, there's a problem within the family unit where there's lack of responsibility for children. The government is obligated to step in which leads to indoctrination via school and no child is left behind, (and later) implementation of government-sponsored protections for them.

The outcome of these efforts are perverse. So in my opinion, the problems lies in the fact only the 'positive' side of family deterioration is on government's ability to collect tax revenue, and this in turn elevates jobs and employment above family activities, thusly family values and activities are moved to the negative side, while in the real world they can not be separated as core family values are necessary to maintain an economy based on integrity. When a government can know a child better than a parent (via warrantless tapping, scanning of emails, and obtaining school records and library records) this itself is extremely bad for long term integrity of a nation.

All this leads to a perverse incentive, and it seems to me that one should either include both (where obtained information is shared and maintained with legal guardians) or none of the efforts.
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DCX2, 9 Jul 2008 @ 3:20pm

Re: Secrecy
Just so you know, the State's Secret privilege was first used to cover up government negligence in the death of an Air Force pilot.

Oh, and the FISC is a secret court so no one knows about the wiretaps. But I guess retroactive warrants from a secret court aren't good enough for you.
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wasnt me, 9 Jul 2008 @ 3:38pm

@Mike
shouldn't your title be "does the tree make sound when it falls in the forest and no one is around to hear it?"

or something along those lines?
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Mike (profile), 9 Jul 2008 @ 3:53pm

Re: Why the Telco's?
I am very ignorant on this matter; can someone please explain to mean the Telco's role in all this. I would have assumed that they are the medium by which the government is conducting these taps, but I seem to keep reading a more sinister role in a lot of these articles and comments, but I don't understand why.

The government asked them to provide direct access to various communications channels, without a warrant. The proper response from the telcos would be to point out that a warrant is needed.

Instead, they (with the exception of Qwest) provided the taps.
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Anonymous Nolife, 9 Jul 2008 @ 8:42pm

Orly
Anyone who objects to wiretapping obviously have something to hide. Its not like the feds etc spend time listening to your recipe, gossips, buying stuff, or sexual relations. Nor do they have the resources to monitor every. What they do is use a system that picks up certain keywords spoken such as terrorist or Osama etc. If you're talking politics on the phone, then maybe they'll see what your up to. Other than that, they wouldn't care what you talk about. I say its perfectly fine unless they like to join in on a threesome ;)
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Dan, 10 Jul 2008 @ 12:13am

This case should have been brought to the world court first, the US court. Take the jurisdiction out of the terrorist's turf.
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Anonymous, 10 Jul 2008 @ 9:00am

Re: Just a matter of Time
The only terrorists we need protection from are those currently running our "government." The only cry-babies here are those pussies like you, who think we should hide behind our government nanny's apron, and believe that the Bush administration has the best interest of the citizens in mind. The only citizens whose best interest are in mind are those of Bush, Cheney and their fear-mongering friends. They clearly have you fooled, weasel.
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Ralph, 10 Jul 2008 @ 9:07am

Re: Orly
There's little point in explaining this yet again to morons, but here goes: This goes beyond "having something to hide" -- it comes down to allowing the government to spy on you for any reason. Maybe the next administration won't like white people, or people who engage in phone sex, or people who aren't Christian Evangelicals. Will it be okay for the government to spy on you then? Who's watching over WHY the government is spying on you?

If you're too stupid to understand this, then you're getting the government you deserve -- the one we have now, the one that thinks you're stupid.
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Anonymous Coward, 10 Jul 2008 @ 9:53am

@ Orly:

It's not that anyone has anything to hide; it's that the government can start looking for things that are "unpopular" with them, even if those things are perfectly moral, ethical & legal. If you haven't read 1984, I think it is instructive on this issue.
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Anonymous Nolife, 10 Jul 2008 @ 3:11pm

Re:
Thanks for the info. Read up on it and has an interesting twist.
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