
Federal Prosecutors, in a Policy Shift, Cite Warrantless Wiretaps as Evidence - panarky
http://www.nytimes.com/2013/10/27/us/federal-prosecutors-in-a-policy-shift-cite-warrantless-wiretaps-as-evidence.html
======
codex
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.

~~~
joe_the_user
_However, he doesn 't want to continue these programs unless they are
constitutional._

Yo, that's some wicked spin ya' got on that sentence of yours.

Implying the slightest good intention to Obama in these circumstances seems
deplorable.

If Obama didn't want to enforce the program, _he could have stopped when it
was secret and no one could complain_. If there's an objective "guide" to
Obama's supposed intentions, it's what his administration did in secret
because they had very few controls on their surveillance approach.

The better to describe thing is: He'd like to continue program and he'd like
to have it declared constitutional.

And don't bet this won't be declared constitutional given the Supreme Court's
history and it's entanglement with the current system. Sure it would be
lighting the constitution fire, tearing it, vaporizing the pieces and throwing
them in a volcano. But hey, that's progress.

~~~
pstuart
Here's an interesting thought: maybe Obama's intentions are good but he's in a
bubble of information and influences that corrupts his thoughts to overlook
the the very concerns that alarm the crowd here at HN.

I'm of the naive opinion that he is not a sleeper muslim communist agent bent
on destroying America; that he really wants to do the best he can for America.

He's not always right in his beliefs, but has been public about his
intentions, e.g., continuing engagement in Afghanistan.

~~~
jerf
Well, I _could_ construct a complicated theory in which his actions do not
reflect who he "truly is"... but why would I? It's his actions that matter,
and his actions on these matters have been pretty much unremittingly in favor
of government power, no matter what curtain of glittering words he tries to
draw over it.

If his "true self" doesn't match his actions... frankly, that's hardly even a
"defense", that's just _further_ damnation.

~~~
tokenizer
Do intentions even matter? I mean, this is the problem with only having a left
and right divide. No talk of the authoritarian vs libertarian aspect of
policy.

As far as I'm concerned, you elect an authoritarian on the left, to pacify
that side, and pass authoritarian policies. To say that they're _really_ good
guys, and shouldn't be held accountable, is defending the status quo IMO.

Obama and the Supreme Court are pro authoritarianism, and will not question
more power, nor will they dismantle it.

------
Karunamon
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.

~~~
dlinder
It seems like the Solicitor General made his case to the Supreme Court,
claiming defendants would be notified. Fast forward to recently, Dianne
Feinstein goes and tells a reporter that yes, we've used evidence from a
warrantless wiretap in this particular case. That guy's lawyer responds with
the legal version of "wait, what?", the Solicitor General realizes that he
(unknowingly?) lied to the Supreme Court, throws a fit (because you don't lie
to the Supreme Court), Justice orders prosecutors to start revealing when such
evidence is used, and now guy is mounting a legal challenge and ACLU/EFF/EPIC
are going after the original case, wherein the Solicitor General (knowingly?)
lied to the Supreme Court.

[http://www.techdirt.com/articles/20130716/01513323814/](http://www.techdirt.com/articles/20130716/01513323814/)

[http://www.techdirt.com/articles/20131017/18381624923/](http://www.techdirt.com/articles/20131017/18381624923/)

[https://www.eff.org/deeplinks/2013/10/when-will-
government-o...](https://www.eff.org/deeplinks/2013/10/when-will-government-
officially-correct-false-claims-it-made-supreme-court-about)

~~~
001sky
_the Solicitor General realizes that he (unknowingly?) lied to the Supreme
Court_

From the article:

 _After reading the article, Mr. Verrilli sought an explanation from the
National Security Division, whose lawyers had vetted his briefs and helped him
practice for his arguments, according to officials with knowledge of the
internal deliberations. It was only then that he learned of the division’s
practice of narrowly interpreting its need to notify defendants of evidence
“derived from” warrantless wiretapping.

There ensued a wider debate throughout June and July..._

The timing seems a co-incidence with the Snowden leaks on parallel
construction.

------
pmorici
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.

------
3825
> 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
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
"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
"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.

------
Rogerh91
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-...](http://www.nationaljournal.com/nationalsecurity/how-justice-
anthony-kennedy-helped-bring-you-the-surveillance-state-20130709)

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/)

~~~
timsally
There are a few things in this post that are widely off the mark, so much so
that is actually unhinges the debate.

The first is that Alito is actually far better than Roberts on privacy rights
[1]. Specifically, Alito supports a mosaic theory of the 4th amendment [2]
that looks at "whether the government conduct taken over time collects an
amount of information that is somehow surprising or unexpected". Alito is
actually one of the best hopes for progressive 4th amendment jurisprudence,
yet your characterization of him is exactly the opposite!

The second is that blind deference it is not the position of Scalia (though he
certainly does support deference to the executive branch when such deference
is allowed by law). He is an originalist [3] who faithfully executes that
algorithm when he renders his decisions. Just because you don't agree with his
point of view doesn't mean he's blindly backing national security agencies. In
this situation, Scalia would tell you that what is being done is allowed by
law and that Congress can stop it at any time through legislation, i.e.
"garbage law in, garbage decision out". He thinks, quite sensibly sometimes,
that it is the executive branch's job to deal with national security issues
and such issues only become his concern when they violate the law. He is a
very capable, if sometimes misguided, jurist.

As to the fact that SCOTUS does not know much about technology, this is an oft
argued position that has been thoroughly debunked. Judges have to make rulings
on a wide range of technical issues that they are not experts on. This has
_always_ been the case, it's not a "wildcard", and the courts are well
equipped to handle it. They bring in experts and requests briefs on the
necessary subjects. In the last 10 years the Court has ruled on genes,
encryption, complex medical procedures, etc. It's impossible for the justices
to be experts on all of these. The best we can do is require the justices to
be experts on the law and provide them with support from subject matter
experts.

[1]
[http://www.michiganlawreview.org/assets/pdfs/111/3/Kerr.pdf](http://www.michiganlawreview.org/assets/pdfs/111/3/Kerr.pdf)

[2] [http://www.volokh.com/2012/01/23/whats-the-status-of-the-
mos...](http://www.volokh.com/2012/01/23/whats-the-status-of-the-mosaic-
theory-after-jones/)

[3] [http://nymag.com/news/features/antonin-
scalia-2013-10/#print](http://nymag.com/news/features/antonin-
scalia-2013-10/#print)

EDITED to address some comments.

~~~
Rogerh91
I think in this case Scalia strongly leans to that position. He himself said:
“The consequence of that is that whether the NSA can do the stuff it’s been
doing ... which used to be a question for the people ... will now be resolved
by the branch of government that knows the least about the issues in question,
the branch that knows the least about the extent of the threat against which
the wiretapping is directed,” Scalia said.

That seems to indicate a certain degree of deferral to both legislative and
executive branches in this matter.

As for garbage law in, garbage decision out, Scalia can't be counted on to
rely on his own purported originalist thinking, lest we forget that the Voting
Rights Act overwhelmingly re-approved by Congress had Section 4 knocked down
by an opinion Scalia joined.

[http://www.theatlanticwire.com/politics/2013/06/scalia-
doma-...](http://www.theatlanticwire.com/politics/2013/06/scalia-doma-vs-
vra/66623/)

~~~
timsally
I agree that Scalia's comments during oral arguments with respect to the
Voting Rights Act were hypocritical and shameful.

~~~
Rogerh91
I'm aware of the formula, the historical boundaries upon which they were set,
and how section 4 could be updated beyond relying on preclearance for
historically discriminatory districts. I do acknowledge that the formula is
flawed and Congress could do a better job (especially in extending protections
to areas not designated historically discriminatory that might be now).
However, my specific point on bringing that up is that Scalia can't be counted
on to hold to his own originalist views, so I emphasized his deferral to other
branches of government instead as the sticking point, as well as his general
dismissal of the right to privacy. Any combination of these factors make him
pretty hopeless on this case, regardless.

I made a mistake blindly sticking Alito in there, without considering his
views on privacy. However, he does have a very strong deference to executive
power that would place him in that bucket of deferring to national security
agencies (and indeed probably drove his majority opinion on Clapper v.
Amnesty).

"One troubling memo concerns domestic wiretaps - a timely topic. In the memo,
which he wrote as a lawyer in the Reagan Justice Department, Judge Alito
argued that the attorney general should be immune from lawsuits when he
illegally wiretaps Americans."

[http://www.nytimes.com/2005/12/24/opinion/24sat1.html](http://www.nytimes.com/2005/12/24/opinion/24sat1.html)

While I have this comment thread going, I'll clarify what I meant by wildcard.
I never intended to note this being a special instance for the court, but
rather I wanted to emphasize how this particular forum (a hub for technology
leaders) can get involved in a deep policy issue like this, and have their
views be well-respected. That doesn't happen that often. It was my call to
action to this forum, rather than any particular critique of the court.

------
coldcode
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
This surveillance was authorized by the FISA Amendments Act of 2008, per the
article.

~~~
unsupak
Isn't this amendment unconstitutional? including the secret evidence act?

~~~
mpyne
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).

------
tobylane
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?

------
crb3
Sounds like the Stasi are sure they've bought themselves a judge.

------
avty
The end of freedom

