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Judge Issues Secret Ruling in Case Challenging NSA Wiretaps

By Jeralyn, Section War on Terror
Posted on Sat Mar 11, 2006 at 05:39:04 AM EST
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I wrote in January about Albany defense lawyer Terry Kindlon and his challenge to the NSA warrantless surveillance program. Details of the motion and Terry's case were outlined by the Albany Times.

On Friday, the Government submitted an ex parte (secret) response to the Judge. Later in the day, the Judge issued a one page order denying Terry's motion but refusing to share his reasons. He designated his order as classified.

As of late yesterday, Mr. Kindlon, even though he has a federal security clearance to represent Mr. Aref in the trial, had not been able to see the substance of the ruling. "Frankly, I'm taken aback," Mr. Kindlon said. The ruling "holds out no promise of anything" for him to see the decision, he said.

....Mr. Kindlon said Judge McAvoy's action convinced him that there was N.S.A. wiretap evidence in the case. "If they were not involved, the government would have told me, 'You're delusional,' " he said.

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    Judge Issues Secret Ruling in Case Challenging NSA Wiretaps | 11 comments (11 topical)
    Re: Judge Issues Secret Ruling in Case Challenging (none / 0) (#1)
    by Talkleft Visitor on Fri Mar 10, 2006 at 10:11:15 PM EST
    How is the Judge's decision to keep it from the defense attorney constitutional? Is it appealable? Is there any sort of court oversight of the Judge's decision?

    Re: Judge Issues Secret Ruling in Case Challenging (none / 0) (#2)
    by Sailor on Sat Mar 11, 2006 at 08:15:19 AM EST
    What ever happened to:
    In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury [...] and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense
    If not even your counsel can see the evidence agast you, how fair can a trial be?

    Re: Judge Issues Secret Ruling in Case Challenging (none / 0) (#3)
    by Edger on Sat Mar 11, 2006 at 08:39:18 AM EST
    Mr. Kindlon asked that all evidence in the case stemming from N.S.A. wiretaps be given to the defense. He argued that the program was unconstitutional and so the evidence should be suppressed. I am no lawyer but it appears that these two of Terry's requests are, if not explicitly, at least in effect granted by the judges ruling, even if without agreement by the judge that the program is unconstitutional., since, as Terry said, Judge McAvoy's action convinced him that there was N.S.A. wiretap evidence in the case. "If they were not involved, the government would have told me, 'You're delusional,' " he said. McAvoy's ruling has the effect of suppressing defence access to wiretap NSA evidence, if it exists. Does this mean that the prosecution will not have access to it as well? If the prosecution can use the evidence, if it exists, would that have the effect of subverting the defendents rights to face their accusers? Can someone help me understand the legal logic here?

    Re: Judge Issues Secret Ruling in Case Challenging (none / 0) (#4)
    by Talkleft Visitor on Sat Mar 11, 2006 at 09:21:25 AM EST
    Edger It seems to be a "fruit from the poisoned tree" arguement. Sure, they may not get in the actual information that was received via the wiretaps, but they will want to get in the information that resulted from an investigation following up on the wiretap information. Although right to counsel may be a concern here, it seems like the confrontation clause is also offended, especially in light of Crawford and its progeny.

    Re: Judge Issues Secret Ruling in Case Challenging (none / 0) (#5)
    by Edger on Sat Mar 11, 2006 at 10:11:31 AM EST
    it seems like the confrontation clause is also offended Thanks, Teddy.

    Re: Judge Issues Secret Ruling in Case Challenging (none / 0) (#6)
    by Edger on Sat Mar 11, 2006 at 10:22:11 AM EST
    they may not get in the actual information that was received via the wiretaps, but they will want to get in the information that resulted from an investigation following up on the wiretap information. This seems to leave open the door for the government, through the NSA, to manufacture evidence to further their aims. Although there is nothing to indicate that they do so, their past actions (justification of Iraq invasion, etc.) also show that we can have no comfortable assurance that they will not do so.

    Re: Judge Issues Secret Ruling in Case Challenging (none / 0) (#7)
    by wg on Sat Mar 11, 2006 at 10:28:56 AM EST
    Sailor: ... What ever happened to: ... This is literal and if you excuse the language somewhat naive reading of the Constitution. The reality out there is far more complicated. For example the right to face one's accuser (presentation clause) appears entirely unsettled in this country even after 200 years. Trial by affidavit has always been a dream of those in "law enforcement" and many authorities have recently taken to claiming that uncontested statements are entirely proper. For example in Hammon it is claimed that a person who made an accusing statement to the police and whose statement is used in lieu of proper court based testimony cannot be forced to appear in court to be confronted by the defense. There is a minor legal industry that developed around this issue in the legal community both academic and real. For a taste of it check out for example the Confrontation blog. -- (It appear that the well being of legal industry is dependent on them being able to constantly turn things on their heads. Economic necessity I think.)

    Re: Judge Issues Secret Ruling in Case Challenging (none / 0) (#8)
    by Edger on Sat Mar 11, 2006 at 10:46:46 AM EST
    It seems that the only way the government can be trusted anymore is through blind unquestioning faith. Broken trust. No checks, no balances. The legacy of the bush years.

    Re: Judge Issues Secret Ruling in Case Challenging (none / 0) (#9)
    by Talkleft Visitor on Sat Mar 11, 2006 at 12:09:13 PM EST
    wg The complaining witness in Hammon was actually subpoenaed by the State, but did not appear at trial. The State did not attempt to show that she was "unavailable," but it is likely that she would have asserted a privilege and so been unvailable to testify regardless of her actual physical presence. The issue in Hammon is not her status, but whether the signed statmeent was testimonial hearsay. The statement got in originally under the excited utterance exception - but if the statement was testimonial it is hard to see any reasoning the court could adopt which would allow the excited utterance exception to survive under these circumstances.

    Re: Judge Issues Secret Ruling in Case Challenging (none / 0) (#10)
    by Sailor on Sat Mar 11, 2006 at 01:36:10 PM EST
    This is literal and if you excuse the language somewhat naive reading
    wg, I know there has been chipping away at the Constitution for years, I just don't understand how it could be considered Constitutional. There was no wiggle room in 'The accused shall enjoy ... to be confronted with the witnesses against him.' Sure, there was deliberately vague language used in many cases so the Constitution could be agreed upon by the founders, but when language is so clear I don't understand how it could be 'interpreted.' And I consider myself an idealist, not naive, tho no offense taken.

    Re: Judge Issues Secret Ruling in Case Challenging (none / 0) (#11)
    by Talkleft Visitor on Sun Mar 12, 2006 at 08:22:59 PM EST
    This case is nuts. I can't see any way this could be legitimate. At the very least the judge needs to say: (1) The motion is denied because the evidence in this case is based on a warrant for a wiretap that I can't let you see because it contains information related to third parties, (2) The motion is denied because the evidence in this case is not based on wiretap evidence, or (3) I find as a matter of law that a warrant was not required for a wiretap giving rise to this prosecution pursuant to statute XXX. Such an order would also have to give some justification for the imposition of such secrecy. If trials are allowed to proceed on the basis of secret rulings based on secret evidence, any subsequent proceeding in the case, be it a plea bargain or a trial, is tainted.

    Judge Issues Secret Ruling in Case Challenging NSA Wiretaps | 11 comments (11 topical)